0120102127
09-17-2010
Raymond V. Mercedes, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.
Raymond V. Mercedes,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120102127
Agency No. P20070152
DECISION
On April 22, 2010, Complainant filed an appeal from the Agency's March 23, 2010 final decision concerning his 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 Commission deems the appeal timely and accepts it for the Commission's de novo review pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission REVERSES the Agency's final decision.
BACKGROUND
During the period at issue, Complainant worked as a Senior Correctional Officer at the Agency's Federal Medical Center Devens in Ayer, Massachusetts. The workforce profile shows two hundred employees in the Correctional Officer job series at this facility: One hundred eighty-nine (189) employees are identified in the Agency's records as male and (11) eleven female. One hundred sixty-five (165) employees are identified as White; twenty (20) as Hispanic; eleven (11) as Black; three (3) as Asian and one (1) as American Indian. Complainant identifies himself as a Latino Black American from the Dominican Republic.
Complainant began having problems with a Senior Officer (CW) in September 2006. Specifically, CW would embarrass Complainant in front of inmates and other Correctional Officers by acknowledging him with greetings such as "hi, sexy" or "hey, handsome." Complainant felt that CW singled him out for these provocative verbal comments because of his race and national origin. Complainant also believed that the comments were potentially dangerous in that they had the effect of undermining his authority in front of inmates and increased tension among his co-workers. Complainant spoke to a Lieutenant about the comments, but was told that CW was just kind of "weird." Two fellow officers, one White (WO), the other Hispanic (HO), attested that CW also spoke to them in the same manner. The White officer stated that CW backed off after he warned him that he would file a complaint. The Hispanic officer stated that he ignored CW because he did not want any trouble. WO described CW as a racist and a "complete jerk."
On November 9, 2006, Complainant and CW had a verbal altercation. CW came to Complainant's unit to pick up "count slips." According to Complainant, despite the fact that CW could see Complainant in the unit, he rang the doorbell continuously to harass him. The doorbell was known to be extremely loud and could be heard from anywhere in the unit. According to WO, CW had been told in the past to discontinue ringing the doorbell unnecessarily. However, CW refused to stop, and WO, HO and Complainant all stated that he did it most often when minority employees were working in the unit.
On this particular evening, according to Complainant, CW took the count slips without speaking and walked away in a gruff, rude manner. Complainant decided to contact CW via telephone to discuss the reason for the incessant ringing of the doorbell. According to Complainant, CW told him that he would continue to ring the doorbell until Complainant opens the door. Then CW hung up. Complainant then contacted CW over the radio. Multiple individuals in the facility, as well as individuals outside of the facility who happened to be listening to the same radio frequency, such as local firefighters, heard CW tell Complainant that "he would see him in the parking lot after work." When Complainant asked if that meant CW was looking to fight, there was no response. Although CW stated that he only meant that they could chat socially after work, the statement was interpreted by everyone else, including Complainant, as an invitation to resolve the issue physically.
Complainant allegedly feared for his safety and asked his first line supervisor to contact the state police. His first line supervisor "talked him out of it" and instructed him to write a memorandum concerning the incident. CW was also instructed to write a memorandum. Complainant did so. However, he felt as if his concerns were not being taken seriously.
On January 12, 2007, Complainant filed an EEO complaint alleging that CW's actions amounted to harassment based on race (black), national origin (Hispanic) and sex (male) and that the Agency failed to take appropriate action in response to Complainant's concerns. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The decision concluded that Complainant failed to prove that the alleged harassment was sufficiently severe or pervasive to be "actionable same sex sexual harassment under TVII" citing the Supreme Court's decision in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998). The decision also found that Complainant failed to show he was singled out by CW because of his race or national origin. The decision stated that CW subjected both WO and HO to the same sexually charged comments. The Agency concluded that CW's actions were more than Complainant should have had to tolerate but not enough to "reach the level of a statutory violation."
ANALYSIS AND FINDINGS
To prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis, i.e. in this case, race, national origin or gender. Only if Complainant establishes both of those elements, does the question of Agency liability for failing to take prompt and corrective action present itself.
The conduct about which Complainant complains might normally not be enough to create a hostile work environment as a matter of law. However, we find that a correctional facility is not an ordinary work environment. There is no dispute in the record that being able to command the respect of one's co-workers and not be undermined in the eyes of violent inmates is required to maintain control in a potentially dangerous place. HO described the facility as a "very rough" place to work. We conclude that a "reasonable person" in Complainant's position could certainly interpret CW's actions to be abusive, and because of the dangerous atmosphere within the prison, sufficiently severe to create a hostile work environment.
We also find persuasive evidence in the record that CW targeted minority officers for his abuse. In this regard, WO attested that CW had previously harassed minorities by excessively ringing the doorbell and had to be counseled, on more than one occasion, to treat people with respect. HO attested that CW made inappropriate sexually charged comments to him in addition to Complainant. While the Agency tries to suggest that CW subjected all the guards to inappropriate comments, credible statements in the record from WO, HO and Complainant establish that CW singled out "non-white" officers for excessive abuse.
Accordingly, we find that Complainant has established that he was subjected to a hostile work environment based on his race and national origin.
In a case of co-worker harassment, an Agency is responsible for acts of harassment in the workplace where the Agency (or its agents) knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. See EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, No. 915.002 (June 18, 1999); 29 C.F.R. � 1604.11(d). The Commission has described the Agency's obligation as being "prompt remedial action reasonably calculated to end the harassment." Appropriate remedial action depends on the particular facts of the case and the severity and persistence of the harassment and the effectiveness of any initial remedial steps.
The Agency concedes that management was aware of CW's actions because both Complainant and WO had complained about him. The Agency took no action in response to complaints about the provocative comments even though it concedes they had the effect of undermining a Correctional Officer's credibility in a violent and dangerous environment.
The record establishes that Complainant was discouraged by his supervisor from seeking protection from the state police and the supervisor asked Complainant instead to write a memorandum documenting what transpired the evening of the veiled threat. An internal investigation was also initiated during which CW was allegedly transferred to the "camp." Complainant expressed his fear to the EEO Investigator that CW's friends would seek to harm him. The Agency set forth no evidence concerning what, if any, immediate action it took to stop the harassment or whether the harassment in fact stopped.
In light of the Agency concession that CW's actions undermined Complainant's authority in the eyes of both violent inmates and all of the Correctional Officers who heard the radio transmission, we are not persuaded that the Agency response was immediate or appropriate enough to either communicate the Agency's intolerance for CW's conduct or prevent it from recurring. Accordingly, we find that Agency liable for violating Title VII.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we REVERSE the Agency's final decision and REMAND the matter to the Agency for further processing in accordance with the ORDER below.
ORDER
Within 60 days of this decision becoming final, the Agency shall take the following action:
1. Investigate Complainant's entitlement to compensatory damages for the race and national origin based harassment to which he was subjected by CW from September - December 2006;
2. Provide eight hours of training to the relevant Agency managers who failed to take prompt and corrective action to stop the harassment about their obligations under Title VII and the Agency's own anti harassment policy; and
3. Consider disciplining all the relevant Agency employees who created the hostile work environment or failed in their responsibility to promptly stop it. The Commission does not consider training to be discipline.
POSTING ORDER (G0610)
The Agency is ordered to post at its Medical Center Devens in Ayer, Massachusetts 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 (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), 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 (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
September 17, 2010
__________________
Date
2
0120102127
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013