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This is a hostile environment harassment case originally filed in 2009 with the final EEOC decision issued in July 22, 2014. It involves an African-American Diplomatic Security Agent and FBI Agents assigned to the FBI’s Joint Terrorism Task Force (JTTF) in Tampa, Florida. The allegations include the hanging of a noose (twice) over the wall separating the DS Agent’s cubicle and adjacent workspace, and racially motivated comments and use of the “n-word” against then-presidential candidate Barack Obama.
Previous to the 2014 final decision, the EEOC on the July 26, 2013 appeal writes:
“[W]e determined that Complainant’s claim involved an allegation of hostile work environment that occurred during the course of Complainant’s detail to the Department of Justice, Federal Bureau of Investigations (FBI). We found that the Agency, as Complainant’s employer, and the FBI could potentially be liable for the alleged hostile work environment. Our previous decision determined that while the Agency issued a decision concluding that there was no basis for holding it liable for the alleged hostile work environment, the FBI failed to issue an independent final decision or join in the State Department’s final decision. In that regard, the previous decision vacated the Agency’s decision and joined the FBI as a party to the case. The complaint was remanded to both agencies for further processing and they were ordered to issue a joint final decision addressing the issue of their respective liability for the discriminatory hostile work environment. The record indicates that despite the Order, the agencies issued two separate decisions addressing their positions.”
According to the EEOC, the State Department’s September 30, 2013 final decision, determined that the DS Agent-complainant was “subjected to hostile working conditions which occurred on FBI premises by FBI personnel” and, therefore, it was not liable for the conduct of FBI employees. Moreover, the State Department contended that its “management officials took prompt action to protect Complaint from the harassing behavior of the FBI employees.” The Agency also emphasized in its decision that Complainant did not claim that any Agency official from the Department of State took any adverse or retaliatory action against him. The State Department concluded that there was no basis for imputing liability to the Agency.
In its July 22, 2014 final decision, the EEOC affirmed the State Department’s decision saying, “Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision.”
Here are the facts from the EEOC case file:
At the time of events giving rise to this complaint, Complainant worked as a Special Agent at the Agency’s Diplomatic Security Section facility in Miami, Florida.
On October 26, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when he was subjected to a hostile work environment from 2008 to July 2009 characterized by, but not limited to, threatening, offensive and hostile acts, derogatory comments and racially inflammatory statements.
The evidence gathered during the investigation2 of this matter indicates that, in September 2007, Complainant began an assignment with the FBI’s Joint Terrorism Task Force (JTTF) based in Tampa, Florida. Complainant was the only State Department employee on the JTTF, which was mostly comprised of other special agents employed by the FBI. Complainant was assigned to a 15-member JTTF squad that worked in an office with opened, modular cubicles.
There is little dispute between Complainant and both agencies over the facts of this case. The parties agree that in the spring of 2008, a noose was hung over the dividing wall of Complainant’s cubicle. According to Complainant, at the time, he did not consider the presence of the noose to be a personal attack, but as an African American believed the action was highly offensive. When Complainant discovered that a particular FBI agent (Agent F) (white male) was responsible for hanging the noose, Complainant spoke to him about it and Mr. F apologized for the incident and took the noose down. Complainant did not complain to any Agency or FBI official about this incident at the time, as he believed that the matter had been handled after he spoke directly to Agent F about it.
However, in the fall of 2008, conversations in the office about the upcoming presidential election began to get “heated” and specific comments were made by Agent F and two other named individuals, Agent O and Air Marshall B (both white males), that Complainant perceived as racially motivated against then-presidential candidate Barack Obama. According Complainant, these individuals made offensive remarks such as “we can’t let some Muslim motherfucker take office” and “when I see someone with an Obama bumper sticker I speed up to see who the fuck is driving the car.” He also said the named individuals commented that they “should put Obama bumper stickers on [their] car and go raise some hell.” According to Complainant, such inflammatory statements were not made about the white presidential candidate. Complainant also alleged that the “n-word” was used in referring to candidate Obama. Initially, Complainant indicates that he tried not take these comments personally and to remain calm. However, he contends that, later, the comments began to affect his working environment negatively and made him feel uncomfortable because the individuals making the statements were the same individuals that Complainant had to rely on to perform his job and for his personal safety. Complainant asserts that he began to perceive hatred from his co-workers against African-Americans based on these comments. He began to wonder how his co-workers felt about him.
In October 2008, another noose was hung over the cubicle adjacent to his cubicle. A Halloween mask was placed in the noose to resemble a hanging. According to Complainant, he observed the other agents laughing about the noose. After this second noose incident, Complainant reported the conduct to his first and second line supervisors at the Agency (State) and to the individual who supervised the FBI Agents on the JTTF. According to statements from Complainant’s supervisors at the State Department, the FBI management assured them that the matter would be investigated by the FBI’s Office of the Inspector General (OIG), and that the responsible FBI agents would be assigned to other squads and away from Complainant.
Complainant was interviewed by the FBI OIG in November 2008 while the FBI agents were interviewed in February 2009. The record further indicates that Complainant’s supervisors at the State Department asked for, but never received, a copy of the OIG report of investigation.3 According to Complainant, although FBI officials advised his State Department supervisor that the offending agents would be moved to new assignments to remedy the situation, the FBI JTTF supervisory officials failed to enforce the reassignment and did not take the action necessary to relocate the agents involved. These facts were verified by the supervisors at State.
In the FBI’s supplemental investigation, the FBI Supervisory Special Agents (SSAs) and the Special Agent in Charge (SAC) averred that as soon as they were informed about the second noose incident, they requested an investigation from the FBI’s Office of Professional Responsibility. However, the FBI’s OIG opted to conduct the investigation. The SAC also said that he directed that the three FBI agents involved in the incidents be immediately moved to work areas away from Complainant. However, the evidence shows that only the junior agent was immediately moved, and while the other two eventually moved, the SSAs and SAC all concede that the two agents were often in Complainant’s work area because they needed access to investigative materials housed there. The SAC further stated that, after the OIG investigation was completed; all three agents were eventually subjected to disciplinary action.
According to Complainant, the work environment became worse for him after he reported the second noose incident and the matters were being investigated. Specifically, Complainant contends that no one spoke to him and that two of the agents who were supposed to be relocated objected to the move and remained in his work area. He indicates that the FBI agents often mocked him. Complainant asserts that he felt alienated from his co-workers and could not perform the job he was assigned to do because his peers would not interact with him. Complainant asserts that one of the offending agents was moved only two desks away from him and that the reassignment was not an effective remedy to stop the harassing conduct. Complainant’s supervisor at State was informed by Complainant of the deteriorating situation, and conducted a site visit himself and confirmed from his own observations that the situation was hostile for Complainant.
On January 4, 2009, Complainant’s supervisor at the State Department, frustrated because FBI management did not appear to be taking appropriate action to remedy the situation, told Complainant to pack his things, leave the JTTF office and work on taskforce duties from home. Complainant did so, believing this was the only thing his supervisor at the State Department could do to protect him from the hostile work environment in the office in the absence of any corrective intervention by the FBI. However, Complainant felt that he was being punished by having to leave the office while the offending agents were still in the office performing their jobs. Complainant contends that the hostile work environment did not end until his assignment was changed in July 2009.
In its September 30, 2013 final decision, the Agency determined that Complainant was subjected to hostile working conditions which occurred on FBI premises by FBI personnel and, therefore, it was not liable for the conduct of FBI employees. Moreover, the Agency contends that its management officials took prompt action to protect Complaint from the harassing behavior of the FBI employees. In addition, the Agency emphasizes in its decision that Complainant does not claim that any Agency official from the Department of State took any adverse or retaliatory action against him. Therefore, the Agency concluded that there was no basis for imputing liability to the Agency.
Excerpt below from the EEOC’s analysis and findings:
To establish a claim of hostile environment harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. […] The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance at 6.
FBI claims the two “noose” incidents were mere pranks
In applying this standard, we find that the evidence of record supports Complainant’s claim of two “noose” incidents, as well as a working environment where Complainant was subjected to derogatory comments and racially inflammatory statements occurring from the spring of 2008 to July 2009. The FBI, however, has argued in its separate September 30, 2013 decision that the offending FBI agents were not motivated by Complainant’s race when, in two separate incidents, they hung a noose in Complainant’s work area. The FBI claims that the incidents were mere pranks directed at another employee and not at Complainant based on his race. The FBI also determined that the remarks by agents concerning the 2008 presidential election and candidate Barack Obama were not racially motivated. The FBI argues that the agents merely expressed their opposition to a particular political candidate and that their comments were not a result of any animus toward Complainant’s protected class.
We disagree with the FBI’s position. In limited circumstances, the Commission has held that certain events, by themselves, may support a finding of discrimination under Title VII. See Juergensen v. Dep’t of Commerce, EEOC Appeal No. 0120073331 (Oct. 5, 2007) (a hangman’s noose is “a highly charged and powerful symbol in the history of this country, calling up painful memories of the lynching of thousands of African Americans”); Brooks v. Department of the Navy, EEOC Request No. 05950484 (June 25, 1996). Moreover, the record is clear that derogatory and racially inflammatory language, including the use of a highly charged racial epithet (the n-word), was openly used by the FBI agents in Complainant’s presence. Moreover, the fact that the remark was not specifically directed toward complainant is not dispositive. See Barber, Eley, Powell and Johnson v. Department of the Navy, EEOC Requests Nos. 05A50657, 05A50771, 05A50972, 05A50973 (March 16, 2006). Therefore, we find that the evidence of record supports a finding that Complainant was subjected to a racially hostile work environment while serving on the FBI task force in 2008 and 2009.
In considering the Agency’s liability for this discriminatory hostile work environment, we note that an Agency is liable for harassment by a co-worker or other non-supervisor when it “knows or should have known of the conduct, unless the Agency can show that it took immediate and appropriate corrective action.” See 29 C.F.R. § 1604.11(d). Whether the Agency’s action is appropriate depends upon “the severity and persistence of the harassment and the effectiveness of any initial remedial steps.” Taylor v. Dep’t of the Air Force, EEOC Appeal No. 05920194 (July 8, 1992). The appropriateness of the Agency’s conduct in response to harassment depends upon “the particular facts of the case-the severity and persistence of the harassment, and the effectiveness of any initial remedial steps.” Owens v. Dep’t of Transp., EEOC Appeal No. 05940824 (Sept. 5, 1996). Appropriate corrective action is a response that is reasonably calculated to stop the harassment.
FBI failed to advise the State Department of investigation results
The record establishes that when Complainant informed his State Department management of the hostile work environment to which he was being subjected, Agency officials immediately contacted Complainant’s FBI supervisors and were advised that the offending agents would be assigned to other teams. Because of the unique circumstances involved in this matter, the Agency had no authority over the FBI agents and did not initiate an investigation because the matter occurred on FBI premises. The Agency also indicates that although the FBI conducted an investigation, the FBI failed to advise the Agency of its results. The record further indicates that Complainant’s State Department supervisor met with Complainant and advised him of the FBI’s plan to remove the offending agents and asked if Complainant wanted to take further action. Complainant elected not to pursue any further action initially, believing that the FBI’s promised intervention into the matter would end the hostile work environment. When Agency management later learned from Complainant that his work environment had not, in fact, improved, and that he was being alienated at the FBI offices, Complainant’s supervisor decided to have Complainant work from home in an attempt to eliminate Complainant’s exposure to the hostile work environment that the FBI had failed to end.
FBI failed to end hostile environment
The record reflects numerous emails sent between various members of Complainant’s management team at the Department of State in their efforts to support Complainant. These emails support the affidavits of State Department officials and Complainant himself, that they initially thought that the FBI’s response to the alleged harassment was adequate. However, when State Department management learned that the FBI had failed to end the hostile environment, it became disillusioned with the FBI’s efforts and removed Complainant from the workplace in order to protect him from further harassment. Complainant testified that he believed the Agency did everything it could to support him.
Diplomatic Security Agent-Complainant was removed from workplace
We find that when the State Department management learned of the harassment, it took prompt action by immediately contacting Complainant’s FBI supervisors in an attempt to address Complainant’s concerns and end the hostile environment. However, because the hostile environment was created by FBI employees at an FBI location, Complainant’s supervisors had no direct authority to remedy the situation. Instead, the Agency was forced to rely on their FBI counterparts in management to address Complainant’s concerns. The record reflects that Agency officials kept in constant contact with Complainant during the course of the FBI’s investigation into Complainant’s allegations and, to the best of its ability, the Agency followed up on the progress of the FBI investigation. The record further indicates that once the Agency learned that the FBI’s investigation did not alleviate the hostile environment to which Complainant was being subjected, the Agency removed Complainant from the environment and permitted him to work from home until his assignment with the FBI was terminated. The Department of State admits that Complainant was subjected to a hostile work environment while working at the FBI. However, record evidence shows that State Department management took prompt and immediate action to report Complainant’s claims to FBI officials and, when the FBI failed to remedy the situation, removed Complainant from the FBI work site in order to prevent further exposure to the hostile work environment. Accordingly, we find that there is no basis for imputing liability to the Department of State for the discriminatory hostile work environment in this case.
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