0120070003
05-22-2008
Melenese Richardson, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security (Immigration), Agency.
Melenese Richardson,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security
(Immigration),
Agency.
Appeal No. 0120070003
Hearing No. 551-2006-00021X
Agency No. HS-CIS-05-W220
DECISION
On October 16, 2006, complainant filed an appeal from the agency's August
23, 2006, final order concerning her equal employment opportunity (EEO)
complaint alleging 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. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
REVERSES the agency's final order.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a supervisory immigration officer at the agency's Seattle,
Washington District Office. Complainant has worked for the agency since
1978, and has been a supervisory immigration officer since approximately
1993. Complainant and another supervisory immigration officer were
the only African-American supervisors in the office during the relevant
time period. The other African-American supervisor was terminated by
the agency in December 2004.
On May 3, 2005, complainant filed an EEO complaint alleging that she was
harassed and discriminated against on the basis of race (African-American)
and in reprisal for prior protected EEO activity (arising under Title
VII) when, since 2003, management officials undermined complainant's
position as supervisor by excluding her from relevant meetings; ordered
others to perform training that complainant was qualified to perform;
verbally berated and denigrated complainant's work performance in front of
subordinate employees; commented negatively to staff about complainant's
knowledge and capabilities as a supervisor; and ridiculed complainant's
abilities to function in her current position.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing, and the AJ held a hearing on June 12 and 13,
2006. Twelve witnesses, including complainant, testified at the hearing.
Complainant's representative delivered a closing statement, but the
agency waived its closing statement. On June 14, 2006, the AJ issued
a decision in which she found that complainant was not subjected to
unlawful harassment or discrimination.
Specifically, the AJ concluded that complainant's witnesses credibly
testified that complainant's first-line supervisor (S1), the Public
Services Manager in the Seattle District Office until April 2004, was
"vulgar and routinely used foul language." However, the AJ determined
that S1 was a "base individual rather than a discriminator" because he
spoke to everyone in the workplace in the same manner, regardless of
race, sex, or other status. The AJ further found that although witnesses
credibly testified that they heard S1 refer to complainant as a "black
bitch," "lazy," and "incompetent," there is no evidence that S1's abusive
language constitutes a race-based hostile work environment. Additionally,
the AJ concluded that complainant's witness credibly testified that two
immigration inspection officers disregarded complainant's authority.
Nevertheless, the AJ found that there was no conclusive evidence that,
in fact, her subordinates failed to respect and follow her direction
to the extent that it altered the terms and conditions of her work
environment.
The AJ further found that the agency's exclusion of complainant from
district director meetings; the banning of complainant from taking
lunch with the office's only other African-American supervisor; and,
the Assistant District Director's (ADD) rebukes of complainant in front
of the public and subordinate employees did not constitute a hostile work
environment because the conduct was not severe or pervasive enough. The
AJ also concluded that complainant failed to establish a prima facie
case of reprisal because complainant's EEO activity occurred after the
alleged agency actions.
The AJ concluded her decision by admonishing the agency that it "has
a responsibility to acknowledge and correct the severe and appalling
mismanagement it presently has on its hands." The AJ stated that the
District Director (Director) and ADD were not credible witnesses. The AJ
stated that the Director was "remarkable for his selective memory" and was
contradicted by other agency witnesses. The AJ further noted that ADD's
"attitude, demeanor, and conduct is nothing short of reprehensible."
The AJ noted that ADD freely admitted that she was unaware of her
responsibilities under EEO laws and indiscriminately disregarded all
laws and regulations. The AJ recommended that the agency retrain and
reassign ADD.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the AJ erred when she found no
discrimination. Complainant argues that the AJ improperly found that
there was no evidence that S1 created a race-based hostile environment,
despite credible witness testimony that S1 referred to her as a
"black bitch." Complainant further argues that the AJ erred when she
found that the alleged actions were not severe or pervasive enough
to constitute a hostile work environment. Complainant maintains that
because of management's actions, she went from being a respected member
of management to working in isolation and being subjected to ridicule.
The agency did not make any argument on appeal.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
Although the AJ analyzed complainant's case under both disparate
treatment and harassment theories, we find that the complaint is more
appropriately addressed as a claim of harassment culminating in a hostile
work environment. In order to prove a case of a hostile work environment,
complainant must show: (1) that she belongs to a protected group; (2)
that she was subjected to unwelcome harassment; (3) that the harassment
complained of was based on her protected status; (4) that the harassment
affected a term, condition or privilege of employment; and (5) that
the agency knew or should have known of the harassment. 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. 915.003 (March 8, 1994).
Further, the incidents must have been sufficiently severe or pervasive to
alter the conditions of complainant's employment and create an abusive
working environment. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75
(1998).
We note that the first four elements of a case of a hostile working
environment relate to whether a hostile environment actually existed. The
fifth element, showing that the agency knew or should have known of the
harassment, addresses the ultimate issue of whether the agency should be
held liable for the existence of a hostile work environment. An employer
is subject to vicarious liability for harassment when, as here, it is
"created by a supervisor with immediate (or successively higher) authority
over the employee." See Burlington Industries, Inc. v. Ellerth, 524
U.S. 742, 765 (1998); see also Enforcement Guidance: Vicarious Liability
for Unlawful Harassment by Supervisors, No. 915.002 (June 18, 1999)
("Vicarious Liability Guidance"). The agency can raise an affirmative
defense when complainant establishes a prima facie case, which is
subject to proof by a preponderance of the evidence, by demonstrating:
(a) that it exercised reasonable care to prevent and correct promptly
any harassing behavior; and, (b) the employee unreasonably failed to
take advantage of any preventive or corrective opportunities provided
by the employer or to avoid harm otherwise. Id., at Section V.
Upon review, we conclude that the AJ's finding that complainant failed
to establish a prima facie case of reprisal is supported by substantial
evidence. However, we find that the AJ erred in her legal analysis of
complainant's racial harassment claim. The testimony of two witnesses
deemed credible by the AJ established that S1 and other employees
referred to complainant in derogatory terms such as "black bitch,"
"lazy," "moron," "dumb," and "incompetent," in district director meetings
and in other settings, and that the witnesses viewed the comments as
"racial in nature and attitude." Witnesses deemed credible by the AJ
also testified that S1 and employees reserved these derogatory terms
for complainant and the office's only other African-American supervisor.
Thus, S1's use of the words "lazy," "moron," "dumb," and "incompetent"
to describe complainant cannot be viewed as generic insults in light of
his confirmed use of the racist term "black bitch" to describe complainant
and the selective application of the terms to African-Americans.1
Moreover, it is undisputed that complainant and the other African-American
supervisor were excluded from district director meetings and directed by
ADD not to take lunches together. Hence, we conclude that S1's use of
a blatant racial slur to describe complainant, coupled with instances
wherein S1 and ADD targeted complainant and the office's only other
African-American supervisor for unfavorable treatment, proves that the
agency's actions were motivated by racial animus. See Deidra Brown
v. Department of Justice, EEOC Appeal No. 0120045121 (December 20, 2006)
(co-workers' covert ridicule of complainant as a "black bitch" indicated
that other harassing conduct was motivated by racial animus); request for
reconsideration denied, EEOC Request No. 0520070276 (March 2, 2007).
We find that the AJ also erred as a matter of law when she concluded
that the agency's actions do not rise to the level of a hostile work
environment. We find that management excluding complainant from weekly
district director meetings from 2003 until approximately October 2004;
rebuking complainant in the presence of the public and subordinate
employees; restricting complainant from taking lunch with the other
African-American supervisor; and, denigrating complainant during
meetings and other settings constitutes conduct that is sufficiently
severe to alter the conditions of complainant's employment and create
an abusive working environment. See Cynthia Gilbert v. Department of
Veterans Affairs, EEOC Appeal No. 01A22636 (June 26, 2003) (hostile work
environment found where supervisor routinely interrupted complainant,
openly disrespected her, threatened to reassign her, excluded her from
receiving administrative information, and demeaned her in public).
Further, we note that one witness testified that some of complainant's
subordinates questioned complainant's competence to supervise them
because complainant was subjected to such ridicule. Therefore, we find
that complainant proved that she was subjected to a racially hostile
work environment.
Liability
We further find that the agency failed to prove the affirmative defense.
A credible witness testified that the Director threatened him with
retaliation because the witness assisted African-American employees with
EEO complaints. The witness further testified that the Director referred
to African-Americans as "those people" and stated that African-Americans
had inferior writing skills. Another witness testified that he did not
report the harassment to the Director because the Director was "part of
the problem." Additionally, a witness testified that he informed ADD that
African-American employees were subjected to a hostile work environment,
but ADD stated that "we don't have anything to discuss" because the
witness refused to identify the complaining employees, who wanted to
remain anonymous. We determine that the record does not contain evidence
that the agency took or attempted to take corrective action in this case,
and there is no indication that the agency disciplined S1 or ADD for their
actions. Thus, we find that the agency is liable for the harassment.
Compensatory Damages
Complainant has requested $62,795.00 in compensatory damages. To receive
an award of compensatory damages, complainant must demonstrate that she
has been harmed as a result of the agency's discriminatory action; the
extent, nature and severity of the harm; and the duration or expected
duration of the harm. See Rivera v. Department of the Navy, EEOC Appeal
No. 01934157 (July 22, 1994), request for reconsideration denied, EEOC
Request No. 05940927 (December 11, 1995); Compensatory and Punitive
Damages Available under Section 102 of the Civil Rights Act of 1991,
EEOC Notice No. N 915.002 at 11-12, 14 (July 14, 1992).
An award of compensatory damages for non-pecuniary losses, including
emotional harm, should reflect the extent to which the respondent
directly or proximately caused the harm, and the extent to which other
factors also caused the harm. The Commission has held that evidence from
a health care provider is not a mandatory prerequisite for recovery
of compensatory damages. See Carpenter v. Department of Agriculture,
EEOC Appeal No. 01945652 (July 17, 1995).
In this case, witness testimony established that complainant has suffered
from high blood pressure, migraine headaches, and feelings of social
isolation because she was subjected to a hostile work environment.
We find that complainant has experienced sufficient emotional distress
to justify an award of $62,795.00. See Viers v. United States
Postal Service, EEOC Appeal No.01A14246 (June 20, 2002)($65,000.00 in
non-pecuniary damages where the complainant stated that she suffered
fatigue, insomnia, marital strain, anxiety, loss of self esteem,
depression, and withdrawal due to harassment and medical documentation
indicated that the harassment awakened a preexisting mental condition);
Hibbert v. Department of Justice, EEOC Appeal No. 0720070036 (October 25,
2007) ($60,000 award for non-pecuniary damages where the agency subjected
complainant to racial harassment that resulted in stress, frustration,
humiliation, and loss of self esteem). We further find that this award
of non-pecuniary compensatory damages is not "monstrously excessive," or
the product of passion or prejudice, and it is consistent with the amount
awarded in similar cases. See Ward-Jenkins v. Department of Interior,
EEOC Appeal No. 01961483 (March 4, 1999) (citing Cygnar v. City of
Chicago, 865 F.2d 827, 848 (7th Cir. 1989)).
CONCLUSION
Accordingly, we REVERSE the agency's final order finding no discrimination
and REMAND this matter to the agency to take remedial action in accordance
with the ORDER below.
ORDER
Within ninety (90) calendar days of the date this decision becomes final,
the agency is ORDERED to take the following remedial actions:
1. The agency shall pay complainant $62,795.00 in non-pecuniary damages.
2. The agency shall reassign the Director, ADD, and S1 from complainant's
workplace and ensure that they never again directly or indirectly
supervise complainant.
3. The agency shall take corrective, curative and preventive action to
ensure that harassment and discrimination does not recur, including,
but not limited to providing training on EEO laws and regulations to all
management and supervisory officials at the Seattle District Office, with
particular emphasis on EEO regulations concerning harassment, reprisal,
and racial discrimination. Within thirty (30) calendar days of the date
the training is completed, the agency shall submit to the Compliance
Officer appropriate documentation evidencing completion of such training.
4. The agency shall consider taking appropriate disciplinary action
against the Director, ADD, and S1, if they are still employed by the
agency. The Commission does not consider training to be disciplinary
action. The agency shall report its disciplinary actions to the compliance
officer with specificity. If the individual has left the agency's employ,
the agency shall furnish documentation of his or her departure.
POSTING ORDER (G0900)
The agency is ordered to post at its District Office in Seattle,
Washington 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 (H0900)
If complainant 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.
29 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 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 (M0408)
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 (S0408)
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 (Z0408)
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:
______________________________ __May 22,
2008__________
Carlton M. Hadden, Director Date
Office of Federal Operations
1 We note that one of the witnesses also testified that S1 referred to
another African-American employee as a "little black bastard."
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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