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Work Environment Found Hostile

On September 17, 2010, the Equal Employment Opportunity Commission’s Office of Federal Operations (“OFO”) issued its decision in Mercedes v. Department of Justice, EEOC Appeal No. 0120102127. Reversing a final agency decision, OFO found the agency had subjected Mercedes to a hostile work environment and remanded the case for proceedings on damages.

Mercedes is a senior correctional officer for the Federal Bureau of Prisons, working at a correctional facility in Ayers, Massachusetts, and is a Latino-Black American from the Dominican Republic. Starting in September 2006, Mercedes was subjected to sexually-provocative comments from a same-sex co-worker which were made at work in the presence of inmates. The complainant became concerned that these comments were undermining his authority as a corrections officer in the eyes of the inmates – a situation which could place him in danger – as they were further creating tension with his coworkers. He complained to a manager, who dismissed the conduct by the harasser on the basis that the coworker was just “weird.” Two other male coworkers (one white and one Hispanic) testified that they were subjected to similar conduct by the same coworker. The white co-worker described the harasser as a racist.

In several incidents, the harasser would excessively ring the doorbell to the prison unit, unnecessarily as Mercedes could see the harasser at the door. The harasser had been counseled previously not to overuse the doorbell in this fashion. The doorbell could be heard throughout the prison unit. Mercedes and the two other harassed coworkers all testified that the harasser engaged in this doorbell behavior most often when minority employees were working the unit. After a series of these incidents, Mercedes verbally challenged the harasser about the doorbell ringing in November 2006 by phone, and then over the radio once the harasser hung up. In response, the harasser – over the radio – announced that “he would see him [Mercedes] in the parking lot”.

Mercedes asked the harasser at the time if he was looking for a fight, to which the harasser did not respond. Mercedes, several coworkers and other individuals outside the prison who happened to be listening to that frequency (including several local firefighters) testified that they interpreted the statement as the harasser challenging Mercedes to a fight. Mercedes reported this to his supervisor and requested that the police be notified. The supervisor instead told Mercedes and the harasser to write memoranda concerning the incident, leading Mercedes to believe that the matter was not being taken seriously by agency management. Later, after an internal investigation, the agency transferred the harasser to a different unit, although friends of the harasser remained in Mercedes’ unit, causing Mercedes to fear possible retaliation.

In January 2007, Mercedes filed an EEO complaint, alleging harassment on the bases of race, sex and national origin. After investigation, Mercedes requested a final agency decision. The decision found the conduct to not be sufficiently severe and pervasive to constitute actionable harassment under Title VII, and that Mercedes failed to show that he was being singled out for harassment. Mercedes then appealed.

On appeal, OFO reversed the agency’s decision. It found that, while the conduct complained of by Mercedes might not ordinary be sufficiently severe or pervasive to constitute actionable harassment, it became sufficiently severe or pervasive when considered in the unique workplace context of a correctional facility – an environment where a loss of apparent authority in front of dangerous inmates could place Mercedes in physical danger. OFO found sufficient evidence that the harasser was targeting minority coworkers. OFO also found that management had failed to take any meaningful action to remedy the harassment after managers were apprised of the harasser’s conduct. OFO thus found the agency to have violated Title VII through race and national origin discrimination and remanded the case to the agency for proceedings on compensatory damages. OFO also directed remedial training for agency managers and ordered the agency to consider possible disciplinary action against the harasser and against those who failed to promptly correct the hostile work environment.