01974823
09-03-1999
Appellants, )
Ethel Ware and Norema Wiley, )
Appellants, )
) Appeal Nos. 01974823;
v. ) 01975415
) Agency Nos. I-92-6332;
Janet Reno, ) I-92-6333
Attorney General, )
Department of Justice, )
(Immigration and Naturalization )
Service), )
Agency. )
)
DECISION
Appellants timely initiated an appeal of a final agency decision (FAD)
concerning their complaints of unlawful employment discrimination on
the basis of race (African-American), in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
Appellants allege they were discriminated against and harassed when: (1)
a Supervisory Immigration Inspector (SII 1) made a racially offensive
comment regarding African-American babies; and (2) various supervisors
made racial comments and/or displayed racially offensive objects in
the workplace. The appeal is accepted in accordance with EEOC Order
No. 960.001. For the following reasons, the agency's decision is
AFFIRMED.
The record reveals that during the relevant time, appellants were employed
as Immigration Inspectors (GS-1816-11 (Ware); GS-1816-09 (Wiley))
at the agency's Inspection Station at O'Hare International Airport in
Chicago, Illinois. Appellants alleged that on or about August 23, 1993,
three Supervisory Immigration Inspectors (SII) were viewing photographs
in an album submitted for a �Big Baby Match-Up Contest.� During this
viewing, appellants allege that SII 1 (Caucasian) stated in response
to a question that there were no photographs of Black babies in the
album because �all Blacks look alike.� Appellants further allege that
SII 1 also made other racially and ethnically offensive comments over
a three to four-year period, and that several other SIIs had engaged
in racially offensive behavior in earlier years such as stating that
African-Americans get �rusty�, that employees should stick with their
own kind and bringing a Ku Klux Klan sword into the office, which
constituted a hostile work environment. Believing they were victims
of discrimination, appellants sought EEO counseling and, subsequently,
filed separate complaints on October 4, 1993, which were then consolidated
for purposes of investigation. At the conclusion of the investigation,
appellants were informed of their right to request a hearing before an
Equal Employment Opportunity Commission (EEOC) Administrative Judge,
or request a final decision by the agency. Appellants requested that
the agency issue a final agency decision.
The FAD found that appellants failed to establish discrimination caused
by a hostile work environment because although there was conflicting
testimony regarding SII 1's comment about the baby photographs, that
comment by itself, if made as alleged, constituted an isolated incident
insufficiently severe or pervasive to establish racial harassment.
The FAD further found that while the evidence established that SII
1 previously had made other offensive comments, two comments over a
five to seven year period did not establish a hostile work environment.
Further, the FAD found that while appellants' allegations on the actions
of other SIIs over the same five to seven year period were credible,
such actions were offensive and thoughtless but were not sufficiently
severe or pervasive to establish a workplace permeated with hostility
towards African-Americans. Finally, the FAD found that when management
was informed of appellants' complaints, the District Director ordered an
investigation and met with the employees in question to inform them that
racial harassment would not be tolerated. The record reflects that after
the actions by the District Director, there were no further incidents
of racially insensitive behavior alleged by appellants. On appeal,
appellants contend that the agency failed to consider a number of their
arguments. The agency requests that we affirm its FAD.
Initially, we find that appellant Ware's allegation that she was
subjected to a hostile environment based on race has previously been
decided by the Commission. The Commission considered the allegations
regarding the comments of SII 1 and the actions of other SII's and
found that while appellant Ware belonged to a protected group, the
incidents which occurred were not sufficiently severe or pervasive to
alter the conditions of employment and create a hostile environment.
Ware v. Department of Justice, EEOC Appeal No. 01963427 (October 30,
1998). We find that appellant has failed to raise any specific allegation
of a hostile work environment which has not been processed by the agency.
We are further persuaded that as appellant Ware's allegations in the
instant claim have already been the subject of a prior EEO complaint,
they are barred from being relitigated pursuant to the doctrines of res
judicata and collateral estoppel. Honeycutt v. Department of Defense,
EEOC Appeal Nos. 01932820, 01932848 (July 28, 1994). As such, these
allegations are properly dismissed.
With regard to the allegation of a hostile work environment made by
appellant Wiley, the Commission finds that while there is credible
evidence that SII 1 made inappropriate and derogatory racial comments,
the testimony of African-American SIIs makes it more likely that he
was an insensitive supervisor making isolated comments than one acting
with discriminatory animus. In so finding, we note that none of the
comments were made directly to appellant or in her presence. Moreover,
the remaining incidents of harassment asserted herein also appear to be
isolated, and do not appear to be severe or pervasive enough to support
a discriminatory hostile work environment claim. It is well settled
that an employer who creates or tolerates a work environment which is
imbued with "discriminatory intimidation, ridicule, and insult" that
"is sufficiently severe or pervasive to alter the conditions of the
victim's employment and create an abusive working environment" is in
violation of the anti-discrimination statutes that the Commission
enforces. Harris v. Forklift Systems, Inc., 114 S.Ct. 367 (1993)
(citing Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986)); Frye
v. Department of Labor, EEOC Request No. 05950152 (February 8,
1996). The conduct in question is evaluated from the standpoint of a
reasonable person, taking into account the particular context in which
it occurred. Highlander v. K.F.C. Management Co., 805 F.2d 644 (6th
Cir, 1986). Unless the conduct is very severe, a single incident or
a group of isolated incidents will not be regarded as discriminatory
treatment. Walker v. Ford Motor Co., 684 F.2d 1355 (11th Cir. 1982).
In applying the legal standard set forth in Harris, supra, we find that
in considering each alleged act of discrimination, individually or as a
group, appellants have failed to establish that they were harassed based
on their race.<1> In addition, although not addressed by the FAD, the
Commission finds that through the comments of SII 1 and the behavior of
other supervisors, appellant has presented sufficient evidence to create
an inference of disparate treatment discrimination based on her race.
O'Connor v. Consolidated Coin Caterers Group, 116 S.Ct 1307 (1996).
However, as the agency conducted an internal investigation regarding
these allegations and notified the supervisors in question that racial
harassment would not be tolerated such that no further offensive comments
were made, we find that the inference of discrimination has been rebutted.
Accordingly, the allegations made by appellant Ware are DISMISSED. With
regard to the allegations made by appellant Wiley, after careful review
of the entire record, including arguments and evidence not specifically
addressed in this decision, the Commission finds that the FAD sets forth
the relevant facts, and properly analyzes the appropriate regulations,
policies and laws. Accordingly, the FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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 the 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 the 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 the 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:
September 3, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 The FAD noted that the agency, through the District Director and
Assistant District Director at O'Hare, took �immediate and appropriate
corrective action� by commencing an internal investigation and notifying
all employees that racial harassment would not be tolerated when they
were notified of SII 1's baby photograph comment and past incidents of
inappropriate comments and behavior. Under the holding of the United
States Supreme Court in Burlington Industries, Inc. v. Ellerth, 118
S.Ct. 2257 (1998) and Faragher v. City of Boca Raton, 118 S.Ct 2275
(1998), employers are subject to vicarious liability for unlawful
harassment by supervisors, but can avoid or limit damages by proving
that it exercised reasonable care to prevent and correct promptly any
harassing behavior. The Court held that liability only arises after
there is a determination that unlawful harassment occurred. However,
as we have found that appellants have not established that they were
subjected to harassment based on their race, the issue of vicarious
liability and whether the agency exercised reasonable care to prevent and
correct any harassing behavior need not be examined in the instant case.