01975205
10-08-1999
Archie L. Hooper, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Archie L. Hooper, )
Appellant, )
)
v. ) Appeal No. 01975205
) Agency No. BHAAFO9605G0350
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from a final agency decision (FAD) concerning his equal
employment opportunity (EEO) complaint, alleging discrimination on the
bases of race (African-American), color (black), and national origin
(American of African descent) in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq. The Commission
hereby accepts the appeal in accordance with EEOC Order No. 960.001.
The issue presented is whether appellant has proved, by a preponderance of
the evidence, that he was subjected to harassment on the above-referenced
bases when management failed to take appropriate action, i.e., acquiesced
in a co-worker's racial slurs.
On April 9, 1996, appellant overheard one co-worker (CW-1) call another
co-worker (CW-2) �Buckwheat� and �Sambo.� He reported the incident
to his Acting Supervisor (AS), who then called CW-1 into his office
and told him not to use racial slurs in the workplace. CW-1 said he
did not mean it maliciously, would refrain from using the terms again,
and asked AS to apologize to appellant for him.
Later that day, appellant called CW-1 over to him and explained that he
should not use racial slurs in the workplace as it could get him into
trouble. Appellant then stated that CW-1 got very angry, repeatedly
called him a �nigger,� and said that he could call anyone a �nigger.�
Appellant reported the incident to the AS, who immediately called a
meeting with him and CW-1. CW-1 explained that he used the word with
appellant only in explanation of the banter he had exchanged with CW-2,
but the AS advised him that racial slurs, even if used in a joking manner,
were not permitted in the workplace. CW-1 responded that he could say
anything he wanted and left the meeting. Nevertheless, he ceased making
racial slurs.
The AS next advised the Supervisor (S-1), when the latter returned to
work, of the incident. S-1 then also admonished CW-1 that the use of
racial slurs in the workplace would not be tolerated, even if used in a
joking manner. Moreover, the Director promptly admonished appellant in a
similar fashion, as soon as he heard of the incident. CW-1 acknowledged
to the Director that he understood the prohibition, and requested that
he be left alone rather than provoked to get a reaction.
Nevertheless, appellant felt that management had acquiesced in the
racial slurs by failing to discipline CW-1 more severely. Believing that
he was a victim of racial harassment, appellant sought EEO counseling
and, subsequently, filed a formal complaint on May 22, 1996. The agency
accepted the allegations and complied with all of our procedural and
regulatory prerequisites. At the conclusion of the investigation,
appellant was provided a copy of the investigative report and requested
a FAD without a hearing. The agency thereupon issued a FAD finding
no discrimination. Appellant now appeals the FAD.
While the agency in its FAD found that the Director and S-1 wrongly
allowed the use of racial exchanges and bantering among the employees
and should have taken action before appellant complained, it also found
that immediate corrective action was taken by management once appellant
raised the issue. Inasmuch as the racial slurs were not directed toward
appellant and he never raised any prior objection to them, and appellant
initiated the encounter with CW-1 in which CW-1 allegedly used the word
�nigger,� the agency determined that management did not acquiesce in
the racial harassment of appellant. Neither appellant nor the agency
raised any contentions on appeal.
Considering the totality of the above circumstances, the Commission
agrees with the determination of the agency. We note in particular that
since the agency took prompt action once appellant raised the issue of
racial slurs, there is no basis for appellant's claim that management
acquiesced in the racial harassment of appellant. We further find that
the incidents complained of were isolated and not sufficiently severe or
pervasive to alter the conditions of appellant's employment and create an
abusive working environment. See Harris v. Forklift Systems, Inc., 510
U.S. 17,21 (1993); EEOC Compliance Manual, Volume 2, EEOC Order 915.002,
Section 902 (March 8, 1994), Enforcement Guidance on Harris v. Forklift
Systems, Inc. at 3,6,9. See also Scura v. United States Postal Service,
EEOC Appeal No. 01965021 (October 8, 1998); McGivern v. United States
Postal Service, EEOC request No.05930481 (March 17, 1994).
Accordingly, after a careful review of the entire record, including
arguments and evidence not specifically addressed in this decision,
it is the decision of the EEOC to AFFIRM the agency's final decision in
this matter.
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. �l6l4.604(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:
October 8, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations