01a44613
03-25-2005
Johngelyene V. Hopkins and Zena P. Conerly, Complainants, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Johngelyene V. Hopkins and Zena P. Conerly v. Department of Agriculture
01A44613 and 01A44614
03-25-05
.
Johngelyene V. Hopkins and Zena P. Conerly,
Complainants,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal Nos. 01A44613, 01A44614
Agency Nos. 020601, 020598
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainants'
appeal from the agency's final decision in the above-entitled matter.
Complainants, a Controlled Correspondence Assistant, GS-07, and a
Computer Specialist, GS-11, alleged that they were subjected to harassment
(nonsexual) and discrimination based on race (African-American) and sex
(female), creating a hostile work environment when:
(1) on February 22, 2002, an alleged confrontational shouting match and
�heated words� were exchanged between complainants and a male (White)
co-worker (C-1), when he expressed his concerns about complainants not
providing him the required work support (e.g. computer assistance);
on February 23, 2002, C-1 in a telephone conversation with a female
(White) co-worker, allegedly made racial remarks and verbal threats
against complainants such as �these black n-----s� and �he will take
care of things in his own way:�<1> and
on or about February 25, 2002, the first-line supervisor communicated
to complainants that C-1 would be moved to the Program and Legislation
staff located on the 5th floor but was ultimately moved to another work
area on the same floor as complainants.
Following an investigation, complainants requested a final agency
decision. The agency issued a decision finding no discrimination.
The FAD found that complainants had failed to establish a prima facie
case of sex discrimination but had established a prima facie case of
race discrimination. The FAD found that the agency regarded C-1's
misconduct as an extremely serious offense and took immediate steps
to address C-1's behavior. Moreover, the FAD maintained that when its
initial steps<2> proved to be inadequate, it repeatedly increased the
restrictions placed on C-1 to prevent him from engaging in any conduct
that could be construed as intimidating or harassing. Specifically,
four days after C-1 was relocated he was sent a memo instructing him not
to enter complainants' office area for any reason and to restrict his
contact with complainants and a coworker. Then, on April 11, 2002, about
five weeks after the initial memo, C-1 was issued an �Interim Behavior
Memo� that placed further stringent restrictions, that barred him from,
among other things, contacting complainants and a coworker through any
means, making comments about them, looking into or standing by their
office, and standing in certain specified common areas.
The FAD indicated that there was a mistaken belief that C-1 would be
relocated to the fifth floor. The FAD found however, that the relocation
to another location on the first floor was adequate because it was
significantly removed from the complainants' office area. The FAD found
that the agency took prompt and appropriate remedial action to stop all
harassing behavior.
On appeal, complainants contend that they should be awarded compensatory
damages for being subjected to a hostile work environment.
The Commission reviews the FAD issued without a hearing de novo.
29 C.F.R. � 1614.405(a). Harassment of an employee that would not
occur but for the employee's race, color, sex, national origin, age,
disability, or religion is unlawful, if it is sufficiently patterned
or pervasive. Wibstad v. United States Postal Service, EEOC Appeal
No. 01972699 (August 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129,
1138-39 (D.C. Cir. 1985)). A single incident or group of isolated
incidents will not be regarded as discriminatory harassment unless the
conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th
Cir. 1982). Whether the harassment is sufficiently severe to trigger
a violation of Title VII 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. Harris v. Forklift Systems, Inc., 510
U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems,
Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. Harassment is
actionable only if the harassment to which the complainant has been
subjected was sufficiently severe or pervasive to alter the conditions
of the complainant's employment. Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997). In any case involving a
claim of harassment, the challenged conduct must be judged by looking
at all of the circumstances including the frequency of the conduct;
its severity, whether it is physically threatening or humiliating, or
a mere offensive uttering; and whether it unreasonably interferes with
an employee's work performance. Faragher v. Boca Raton, 524 U.S. 775,
787-788 (1998).
It is well-settled that harassment based on an individual's race or
sex is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57
(1986). In order to establish a claim of harassment under those bases,
the complainant must show that: (1) s/he belongs to the statutorily
protected classes; (2) s/he was subjected to unwelcome conduct related
to his/her membership in those classes; (3) the harassment complained of
was based on race or sex; (4) the harassment had the purpose or effect of
unreasonably interfering with his/her work performance and/or creating
an intimidating, hostile, or offensive work environment; and (5) there
is a basis for imputing liability to the employer. See Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should
be evaluated from the objective viewpoint of a reasonable person in
the victim's circumstances. Enforcement Guidance on Harris v. Forklift
Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).
Upon review, we find that complainants failed to establish that they were
subjected to a hostile work environment based on their sex. We note,
that complainants did not present any evidence that any of the alleged
actions were motivated by their sex.
Regarding complainants allegation of a hostile work environment based
on race, the evidence shows that on February 22, 2002, complainants were
summoned to an empty supervisor's office and lectured to and yelled at by
C-1, regarding his concerns about their not providing him work support.
The evidence also reveals that C-1 called a co-worker of complainants
and made racially charged remarks about complainants to the co-worker
outside of their presence.<3> In view of the evidence, we will assume
for the purposes of analysis that complainants established a hostile work
environment based on race. The Commission has previously noted that
the use of the racial epithet "n----r" is a "highly charged epithet"
which "dredge [s] up the entire history of racial discrimination in
this country." See Brooks v. Department of the Navy, EEOC Request
No. 05950484 (June 25, 1996); Yabuki v. Department of the Army, EEOC
Request No. 05920778 (June 4, 1993) (single incident of verbal abuse
and negative comment concerning Japanese people sufficient to constitute
race and national origin discrimination).
The final step of the analysis involves determining whether or not there
is a basis for imputing liability to the employer. Where the harassment
is perpetrated by a co-worker, an employer is liable where it "knows
or should have known of the conduct, unless it can show that it took
immediate and appropriate corrective action." 29 C.F.R. � 1604.11(d).
Upon review, we find that the agency's response to complainants' report
of harassment was prompt and appropriately sufficient for the agency
to avoid liability. Specifically, we note that after learning of
the deplorable actions of C-1 on February 25, 2002, agency management
immediately moved C-1 away from complainants' work area. We also note
that management officials immediately held a meeting with C-1 after
complainants reported the incident and counseled him on his conduct.
Further, the agency issued C-1 letters on March 6, 2002 and June 27,
2002, barring him from any contact with complainants, and disciplined him
by issuing him a letter of warning pursuant to an agency investigation
of the matters. Finally, we note that the record does not show, and
complainants do not contend, that C-1 continued to use racial slurs or
comments after the harassing incident was reported. While complainants
may have preferred that C-1 be moved to another floor in the building, a
review of the office floor plan reveals that C-1 was moved to a different
section of the first floor that is spatially removed from complainants'
work area, separated by walls, offices, a restroom, and hall corridors.
As such, we find that the agency fulfilled its obligation to take prompt
and appropriate remedial action to end the harassment once it learned of
the harassment. See Enforcement Guidance on Harris v. Forklift Systems
Inc., EEOC Notice No. 915.002 (March 8, 1994).
Accordingly, after a thorough review of the record in its entirety, it
is the decision of the Equal Employment Opportunity Commission to affirm
the agency's final decision for the reasons set forth in this decision.
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 (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
____03-25-05______________
Date
1 In the co-worker's affidavit, she does
not give any examples of the alleged threats made against her and the
complainants. She simply indicates that she would like the agency to
take seriously the threats made by C-1 against them.
2 C-1 was verbally reprimanded, steps were taken to suspend C-1, but
this action was later turned into a letter, and C-1 was relocated to
another location on the first floor.
3 We note that although C-1 denies he made racial slurs and remarks,
another co-worker stated in affidavit testimony that in another workplace
incident, C-1 pointed to a bottle of correction fluid and stated �this
is how black people get rid of people like you and me, white-out, get it.�