01965378
11-13-1998
Deloris A. Henry, Appellant, v. Rodney E. Slater, Secretary, U.S. Department of Transportation, (Federal Aviation Administration), Agency.
Deloris A. Henry v. U.S. Department of Transportation
01965378
November 13, 1998
Deloris A. Henry, )
Appellant, )
)
v. ) Appeal No. 01965378
) Agency No. 2930394
Rodney E. Slater, )
Secretary, )
U.S. Department of Transportation, )
(Federal Aviation Administration), )
Agency. )
_______________________________________)
DECISION
INTRODUCTION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC or Commission) from the final agency decision
concerning her equal employment opportunity (EEO) complaint, which alleged
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq. The appeal is accepted by the
Commission in accordance with the provisions of EEOC Order No. 960.001.
ISSUE PRESENTED
The issue presented is whether appellant has established, by a
preponderance of the evidence, that the agency discriminated against her
on the basis of race (Black), when she was advised and received a copy
of a memorandum, which was circulated nationwide, written by a section
Supervisor (RMO1) in which he alleges appellant was referred to as a
"Big fat black monkey," by an evaluation Branch Manager (RMO2).
BACKGROUND
At the time of this complaint, appellant was a GS-12, Step 4, Supervisor
at the agency's Lansing, Michigan, Automated Flight Service Station.
In September of 1992, she was sent a memorandum written by the Supervisor
of the National Air Traffic System Effectiveness/Evaluation Branch
(Caucasian, male)(RMO1), wherein it alleged that the Branch Manager
(Caucasian, male, presently retired)(RMO2) was guilty of misconduct,
waste, abuse, and making derogatory remarks. Specifically, one of the
derogatory remarks attributed to RMO2 was that appellant was a "Big fat
black monkey."
RMO2 denied making any derogatory comments about appellant and that "it
[was] unfortunate that the letter by RMO1 was circulated nationwide." He
further added that RMO1, who was his subordinate, wrote the memorandum to
the Air Traffic Communications Surveillance Supervisor (RMO3) accusing him
(RMO2) of making this derogatory comment about appellant in order to hold
him (RMO2) "accountable for his performance."<0> RMO2 further testified
that "[RMO1] and [Mr. X], who was the Division Manager of AJT-100, were
the only people that had a copy of the letter written by RMO1 when this
nationwide distribution was done." Moreover, a copy of the memorandum was
sent to the President of the National Black Coalition of Federal Aviation
Employees (NBCFAE) in Albuquerque, New Mexico, who then contacted the
agency's Deputy Administrator and demanded that action be taken.
RMO3 testified that he first received a copy of the memorandum from
RMO1 in May of 1992, and thereafter contacted the Civil Rights Office
to conduct an investigation. As a result of the investigation, RMO3
detailed RMO2 to the agency's Southwest Region's Air Traffic Division
pending further action. On June 23, 1992, RMO3 issued RMO2 a notice
of suspension for 15 days without pay, and administratively reassigned
him to a non-supervisory, non-management position. However, after
reconsideration, RMO3 suspended RMO2 for only 12 days and administratively
reassigned him within-grade from his Branch Manager position to a
non-management position where he remained until his retirement.<2>
RMO3 further testified that he was informed by the Associate Administrator
for Air Traffic and the Western Pacific Air Traffic Division Manager
that a copy of the memorandum had been found as far as the Los Angeles'
Terminal Radar Approach Control (TRACON). He was further advised that
air traffic employees had received copies of the memorandum at a NBCFAE
meeting in Southern California. The employees allegedly were informed
that the memorandum was being reproduced and distributed in an effort
to increase the participants' awareness of discrimination.
On October 24, 1992, appellant originally filed an EEO complaint alleging
that as a result of the memorandum's circulation throughout the agency
nationwide, she became mentally disabled. On September 24, 1993,
the agency issued a final agency decision (FAD) in which it dismissed
appellant's complaint for failure to state a claim. Appellant appealed
to the Commission. In EEOC Appeal No. 01940118 (December 14, 1993),
we reversed the agency's decision to dismiss the entire complaint and
remanded the complaint to the agency for processing on the basis of race
discrimination in accordance with the applicable regulations. On June 21,
1994, the agency accepted the issue as delineated in the above-entitled
statement, "Issue Presented." Following the agency's investigation of
the complaint, appellant was notified of her right to request a hearing
before an EEOC administrative judge (AJ), or to request a final agency
decision (FAD). Appellant initially requested a hearing, but withdrew her
request on October 13, 1995. Thereafter, the agency issued a FAD finding
no discrimination. It is from this decision that appellant now appeals.
ANALYSIS AND FINDINGS
As a general rule, derogatory remarks, standing alone, do not sufficiently
harm a person for the purposes of standing. The Commission requires
that a remark or comment be accompanied by a concrete action in order
for a complainant to suffer sufficient injury to be aggrieved. Cobb
v. Secretary of Treasury, EEOC Request No. 05970077 (March 13, 1997).
Of course, such a holding must also be viewed in light of the large body
of law surrounding hostile environment claims. The distinction being
that an isolated remark may not cause sufficient injury to aggrieve
an employee, but when the remarks become severe and pervasive they can
create a hostile environment.
There remains no real rule that can be extracted from the Commission's
decisions involving derogatory remarks that provides clear guidance on the
difference between isolated comments, that the Commission regards as not
injuring an employee, and comments sufficient to aggrieve a complainant.
Though one factor the Commission will look at in such cases is background
evidence that relates to the overall environment. Also, the Commission
has demonstrated it is extremely sensitive to the use of the racial
epithet "nigger" because it is a "highly charged epithet" which "dredge[s]
up the entire history of racial discrimination in this country."
The Commission has also held that, under certain circumstances, a
limited number of highly offensive slurs or comments about a federal
employee's race or national origin may in fact support a finding of
discrimination under Title VII. Brooks v. Department of the Navy, EEOC
Request No. 05950484 (June 25, 1996). See also Yabuki v. Department of
the Army, EEOC Request No. 05920778 (June 4, 1993)(where a supervisor
stood at the water cooler, pointed his finger at appellant's face, and
declared disparagingly in front of other employees, "it is because of
[appellant]" that the Japanese people will soon own the country); Gamboa
v. U.S. Postal Service, EEOC Request No. 05890633 (August 31, 1989)(the
Commission held that a single incident involving two humiliating remarks
by appellant's supervisor, taking place in a public forum, stated a claim
for disability discrimination)(citing, Baily v. Binvon, 583 F.Supp. 923,
925 (N.D. Ill. 1984)(where a supervisor told plaintiff in front of other
employees that "all niggers are alike;" and in private called plaintiff a
"nigger," and informed him he was not a human being).
To determine whether a work environment is objectively hostile or abusive,
the trier of fact must consider all of the circumstances, including the
following: 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. Harris v. Forklift Systems, Inc., 510 U.S. 12, 21
(1993). While the trier of fact should consider all relevant factors,
no single factor is required to establish a hostile or abusive work
environment claim. Id.
Based on a review of the record, the Commission finds that appellant
was subjected to work in a discriminatory environment due to her race.
The record indicates that although the comment in question was not made
in the presence of the individual who wrote the memorandum (RMO1),
a fellow co-worker (Caucasian, female)(Co-worker 1) testified that
she heard RMO2 make the remark during an evaluation. She then told RMO1
about the comments made about appellant. Although there is no mechanical
test that can be applied to determine how many incidents are required to
establish harassment, an assessment must be made by taking into account
the totality of the circumstances.
"[A]n agency is responsible for supervisors whose use of ethnic slurs
or other abusive language has the effect of creating an intimidating,
hostile, or offensive work environment that unreasonably interferes
with an individual's work performance." Zulucky v. United States Postal
Service, EEOC Request No. 05870508 (April 14, 1988)(an employee who
alleged that the comments of coworkers made him feel like an "outcast"
stated a claim, "which may be illustrative of the circumstances affecting
the conditions of his employment"). Thus, where derogatory racial
comments are pervasive, opprobrious, repeated and wide-spread, resulting
in an atmosphere charged with racist overtones and racial tensions, a
Title VII violation is found. See, e.g., Snell v. Suffolk County, 611
F.Supp. 521 (D.C.N.Y. 1985)(coworkers' circulation of racist material).
In the instant case, there is sufficient evidence that RMO2 held hostility
towards members of appellant's protected group. The memorandum at issue
described other employees of appellant's protected group as "Mannequin
Niggers" and "token niggers." Although the record is unclear as to how
exactly the memorandum in question came to be circulated throughout
the agency and nationwide, RMO2's humiliating and offensive comments
were allowed to permeate appellant's workplace with ridicule and insult.
In light of the nature of the comments made, viewed in the context of the
totality of the evidence, as well as Commission precedent, we conclude
that appellant's allegations interfered with her work environment and
performance.
After a review of the record as a whole, the Commission finds that agency
subjected appellant to a workplace permeated with ridicule and insult
based on her race, and which was sufficiently severe and pervasive to
create an objectively hostile work environment.
As a remedy, appellant requested compensatory damages for her pain and
suffering. In Carle v. Department of the Navy, EEOC Appeal No. 01922369
(January 5, 1993), the Commission described the type of objective evidence
that an agency may obtain when assessing the merits of a complainant's
request for emotional distress damages:
[E]vidence should . . . [take] the form of a statement by appellant
describing her emotional distress, and statements from witnesses, both
on and off the job, describing the distress. To properly explain the
emotional distress, such statements should include detailed information
on physical or behavioral manifestations of the distress, information on
the duration of the distress, and examples of how the distress affected
appellant day to day, both on and off the job. In addition, the agency
should . . . [ask] appellant to provide objective and other evidence
linking . . . the distress to the unlawful discrimination.
Objective evidence could include statements from appellant concerning
her emotional pain or suffering, inconvenience, mental anguish, loss
of enjoyment of life, injury to professional standing, injury to
character or reputation, injury to credit standing, loss of health,
and any other nonpecuniary losses that were incurred as a result of the
discriminatory conduct. Statements from others, including family members,
friends, health care providers, other counselors (including clergy) could
address the outward manifestations or physical consequences of emotional
distress, loss of self-esteem, excessive fatigue, or nervous breakdown.
Objective evidence also may include documents indicating appellant's
actual out-of-pocket expenses related to medical treatment, counseling,
and so forth, related to the injury allegedly cause by discrimination.
As noted above, the agency should advise appellant that she must
establish a connection between the alleged discriminatory actions
and the resulting injury. In determining damages, the agency is only
responsible for those damages that are clearly shown to be caused by
the discriminatory conduct, not for any and all damages in general.
See Enforcement Guidance: Compensatory and Punitive Damages Available
Under � 102 of the Civil Rights Act of 1991, EEOC Notice No. N 915.002
(July 14, 1992) at 8-14; see also Rountree v. Department of Agriculture,
EEOC Appeal No. 01941906 (July 7, 1995).
CONCLUSION
Based upon a thorough review of the record, and for the reasons
cited above, it is the decision of the Equal Employment Opportunity
Commission to REVERSE the final agency decision and find that appellant
has established, by a preponderance of the evidence, that she was
discriminated against because of her race, as alleged. Furthermore,
we REMAND the case to the agency for continued processing in accordance
with the Order below.
ORDER
The agency is ORDERED to conduct a supplemental investigation to determine
the amount of any compensatory damages. The agency shall allow appellant
the opportunity to present objective evidence in support of her claim.
Thereafter, the agency shall issue a final decision with appeal rights
to the Commission, pursuant to 29 C.F.R. � 1614.110, on the amount of
compensatory damages, if any, owed to appellant. This supplemental
investigation and issuance of a final decision must be completed within
120 calendar days of the date this decision becomes final. A copy
of the final decision must be submitted to the Compliance Officer,
as referenced below.
The agency is ORDERED to take the following remedial action to ensure that
the hostile work environment discrimination ceases and does not recur:
(1) The agency is ORDERED provide all supervisory and management personnel
who knew or should have known about RMO2's comments and the memorandum,
appropriate training regarding their responsibility to ensure a workplace
free of discrimination based on race, religion, sex, national origin,
age, or disability.
(2) The agency is further directed to submit a report of compliance, as
provided in the statement entitled, "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective actions have been implemented within sixty (60)
calendar days of the issuance of this decision.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Lansing, Michigan 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 (H1092)
If appellant 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. 20
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 20 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Nov 13, 1998
______________ ___________________________
Date Ronnie Blumenthal, Director
Office of Federal Operations
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission, dated ______________________, which
found that a violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et al. has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The United States Department of Transportation, Federal Aviation
Administration, Lansing, Michigan Office, supports and will comply
with such Federal law and will not take action against individuals
because they have exercised their rights under law.
The United States Department of Transportation, Federal Aviation
Administration, Lansing, Michigan Office, has remedied the employee
affected by the Commission's finding that she was discriminated
against because of her race when a manager uttered highly offensive
derogatory racial comments which were subsequently distributed
nationwide.
As a remedies for the discrimination, the United States Department
of Transportation, Federal Aviation Administration, Lansing, Michigan
Office the will determine and pay any compensatory monetary damages as
well as provide training to its supervisory and management officials
on maintaining a workplace free of discrimination based on race, sex,
religion, national origin, physical disability and age. The United States
Department of Transportation, Federal Aviation Administration, Lansing,
Michigan Office will ensure in the future that officials responsible for
personnel decisions and terms and conditions of employment will abide
by the requirements of all Federal equal employment opportunity laws.
The United States Department of Transportation, Federal Aviation
Administration, Lansing, Michigan Office, will not in any manner
restrain, interfere, coerce, or retaliate against any individual
who exercises his or her right to oppose practices made unlawful
by, or who participates in proceedings pursuant to, Federal equal
employment opportunity law.
Date Posted:
Posting Expires:
29 C.F.R. Part 1614
1 We assume RMO2 is referring to RMO1's performance when he states
refers to "his performance."
2 On July 29, 1992, RMO2 filed a formal grievance regarding his
12-day suspension, and his reassignment to a nonsupervisory position.
The grievance arbitrator upheld the agency's suspension stating that
the reassignment was warranted considering RMO2's management position.