Archie L. Hooper, Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionOct 8, 1999
01975205 (E.E.O.C. Oct. 8, 1999)

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