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 Harassment Minimize

(See also § 15-100)

In General 

Rule 15-100 etseq. procedures serve to maintain a workplace free of any unlawful harassment, deter future harassment and minimize the City's exposure to potential liability in Title VII lawsuits.  In re Gallo, CSA 63-09, 4-5 (CSB 3/17/11).

An employee who believes she has been subjected to sexual harassment in violation of CSR 15 does not have to wait until the harassing behavior has become severe and pervasive enough to alter the conditions of her employment and create a hostile work environment (the level of proof required to sustain a Title VII lawsuit) before reporting such harassment.  In re Gallo, CSA 63-09, 5 (CSB 3/17/11).

An interpretation of Rule 15 that suggests the rule requires proof that the harassing behavior was severe and pervasive enough to create a hostile work environment is contrary to the express language of 15-101, which prohibits all harassment on the basis of sex, race or other protected status. In re Gallo, CSA 63-09, 5 (CSB 3/17/11).

General annoyances or insults are not actionable.   In re Gallo, CSA 63-09, 5 (8/27/10), citing Hicks v. Gates Rubber Co., 833 F.2d 1406, 1412 (10th Cir. 1987); Johnson v. Bunny Bread Co., 646 F.2d 1250, 1257 (8th Cir. 1981), but see In re Gallo, CSA 63-09, 5 (CSB 3/17/11).

Harassment claimant must show a steady barrage of opprobrious racial comments, not a few isolated incidents of racial enmity.   In re Gallo, CSA 63-09, 5 (8/27/10), citing Hicks v. Gates Rubber Co., 833 F.2d 1406, 1412 (10th Cir. 1987); Snell v. Suffolk Co., 782 F.2d 1094, 1103 (2nd Cir. 1986); Johnson v. Bunny Bread Co., 646 F.2d 1250, 1257 (8th Cir. 1981), but see In re Gallo, CSA 63-09, 5 (CSB 3/17/11).

To establish a hostile work environment, employee must prove the actions were pervasive or severe enough to alter the terms, conditions, or privilege of her employment, and (2) the harassment was race-based or stemmed from racial animus.  In re Gallo, CSA 63-09, 5 (8/27/10), citing Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986), but see In re Gallo, CSA 63-09, 5 (CSB 3/17/11).

In evaluating whether an environment is hostile or abusive, the frequency and severity of the conduct may be considered, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee’s work performance.  In re Gallo, CSA 63-09, 5 (8/27/10), citing EEOC v. PVNF, LLC, 2007 U.S. App. LEXIS 11276 (10th Cir. 2007).  

Since nearly all of the alleged harassment was committed by unidentified co-workers, employee must show that supervisor knew or should have been aware of the harassment and failed to intervene.  In re Gallo, CSA 63-09, 5 (8/27/10), citing Myers v. LeFlore County Bd. of Comm’rs, 1998 U.S. App. LEXIS 1491, 6-7 (10th Cir. 1998); Harrison v. Eddy Potash, 112 F.3d 1437, 1444 (10th Cir. 1997).

Infantile pranks and vague gestures or looks do not establish racial harassment.   In re Gallo, CSA 63-09, 6 (8/27/10). 

Rumors of a sexual relationship between white deputy and African-American deputy did not prove racial harassment where the frequency of their visits together made gossip likely even in the absence of racial disparity.  In re Gallo, CSA 63-09, 6 (8/27/10).

Change in lunch schedule which reduced employee's opportunity to have lunch with African-American co-worker did not establish race harassment where employee did not rebut employer's business explanation for the change.  In re Gallo, CSA 63-09, 6 (8/27/10).

Fact that supervisor excessively and publicly criticized deputy though she made no more mistakes than anyone else did not prove race harassment.  In re Gallo, CSA 63-09, 7 (8/27/10).

There are two types of sexual harassment: quid pro quo—where submission to sexual conduct is made a condition of concrete employment benefits, and hostile work environment—where harassment creates an offensive working environment.  In re Carter, CSA 87-09, 6 (2/17/10), citing Hicks v Gates Rubber Co., 833 F. 2d 1406, 1413 (10th Cir. 1987).

A hostile work environment occurs when an employee is subjected to comments of a sexual nature, offensive sexual materials, or unwelcome physical contact as a regular part of the work environment.  In re Carter, CSA 87-09, 6 (2/17/10)

Generally, a single incident does not create a hostile work environment unless it is outrageous conduct.  In re Carter, CSA 87-09, 7 (2/17/10), citing Hicks v Gates Rubber Co., 833 F. 2d 1406, 1413 (10th Cir. 1987).

Appellant-deputy’s announcement on the jail public address system, inviting inmates to guess the sexual orientation of another deputy was not, by itself, sufficiently outrageous to create a hostile work environment.  In re Carter, CSA 87-09, 7 (2/17/10); citing Hicks v Gates Rubber Co., 833 F. 2d 1406, 1413 (10th Cir. 1987).

In order to establish harassment on the basis of religion, appellant must present credible evidence that the workplace was permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create abusive working environment.   In re Morgan, CSA 63-08, 16 (4/6/09), citing Meritor Savings Bank, FSB v. Vinson, 477 U.S 57, 65 (1986). 

Appellant's evidence, that agency scheduled his work on his Sabbath, alone was insufficient to prove religious harassment claim.   In re Morgan, CSA 63-08, 16 (4/6/09).

By insulting co-workers on the basis of their national origin, age, and sex, appellant injected an element into the workplace that is barred by the personnel rules governing both conduct and discipline.   In re Schultz, CSA 70-08, 5 (3/2/09); § 15-102 A; § 16-60 R.

There are two forms of sexual harassment, quid pro quo, and hostile work environment.   In re Norman-Curry, CSA 28-07 and 50-08, 10 (2/27/09), citing Hicks v Gates Rubber Co., 833 F. 2d 1406, 1413 (10th Cir. 1987).

A claim of quid pro quo sexual harassment is shown by evidence a supervisor conditioned a tangible employment benefit upon a subordinate's submission to sexual conduct.  In re Norman-Curry, CSA 28-07 and 50-08, 10 (2/27/09), citing Hicks v Gates Rubber Co., 833 F. 2d 1406, 1413 (10th Cir. 1987).

Hostile work environment sexual harassment occurs where sexual conduct unreasonably interferes with the employee's work performance or creates an intimidating, hostile, or offensive working environment.  This form of sexual harassment must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.   In re Norman-Curry, CSA 28-07 and 50-08, 11 (2/27/09), citing Faragher v City of Boca Raton, 524 U.S. 775, 805 (1998).

A claim of hostile work environment requires identification of a protected status and an extreme incident or pattern of behavior that caused an alteration of workplace conditions.  In re Macieyovski, CSA 62-06, 6 (12/14/06), citing In re Chappell, CSA 02-02, 34 (3/22/02).

Harassment is proved by evidence that 1) the behavior was pervasive or severe enough to alter the terms, conditions, or privilege of employment, and 2) the behavior was based upon a protected status or stemmed from animus against a protected status.  In re Hernandez, CSA 03-06, 10 (5/3/06), citing Bloomer v. UPS, 94 Fed. Appx. 820 (10th Cir. 2004).

A hostile-environment constructive discharge claim must show working conditions so intolerable that a reasonable person would have felt compelled to resign.  Unless conditions are beyond ordinary discrimination, a complaining employee is expected to remain on the job while seeking redress.  In re Lewis, CSA 22-06, 3 (5/2/06), citing Pennsylvania State Police v. Suders, 542 U.S. 129 (2004); Wilson v. Board of County Commissioners, 703 P.2d 1257 (Colo.1985); Irving v. Dubuque Packing Co., 689 F.2d 170 (10th Cir. 1982). 

Rules 19-10 B. 1), 15-103 B., and 15-104, when read together, clearly intend to afford an agency notice of the nature of the alleged harassment or discrimination, or retaliation, and a real opportunity to investigate, evaluate, and correct it.  In re Lewis, CSA 22-06, 2 (5/2/06).

Appellant bears the burden to prove actions taken by employer constituted discrimination, i.e., that the actions were imposed because of appellant’s membership in a protected class and that they were “so severe or pervasive as to alter the conditions of a victim’s employment and [create] an abusive working environment.”  In re Lewis, CSA 22-06, 3 (5/2/06), citing Faragher v City of Boca Raton, 524 U.S. 775 (1998); 42 U.S.C. § 2000e-2(a) (1).

Racial harassment may be proven by two separate theories: tangible employment action harassment or hostile environment harassment.  In re Crenshaw, CSA 18-06, 2 (4/6/06), citing Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257, 2268 (1998).

Tangible employment action harassment requires proof of a significant change in employment status.  In re Crenshaw, CSA 18-06, 2 (4/6/06), citing Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257, 2268 (1998); Notice No. 915.002, § IV (B), EEOC Compliance Manual (June 18, 1999).

Harassment complaint must be filed first with supervisor, appointing authority or human resources department before an appeal is filed.  In re Vigil, CSA 110-05, 7-8 (3/3/06).

To establish a prima facie case of hostile work environment harassment, appellant must show, under the totality of the circumstances, that harassment was pervasive or severe enough to alter the terms, conditions, or privilege of employment.  Evidence must show that workplace was permeated with discriminatory intimidation, ridicule, and insult sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.  In re Van Dyck, CSA 143-05, 2 (2/16/06), citing Bloomer v. UPS, 94 Fed Appx. 820 (10th Cir. 2004).

Discriminatory harassment is actionable only if it is so severe or pervasive as to alter the conditions of the victim’s employment and create an abusive working environment.  Appellant must also show harassment was related to protected status.  In re Williams, CSA 65-05, 8 (11/17/05), citing Clark County School District v Breeden, 532 U.S. 268 (2001). 

To establish a prima facie case of hostile work environment harassment, a plaintiff must show that, under the totality of the circumstances, 1) the harassment was pervasive or severe enough to alter the terms, conditions, or privilege of employment, and 2) the harassment was based upon a protected status. A showing of pervasiveness requires more than a few isolated incidents of racial enmity. A plaintiff must produce evidence to show that the workplace was permeated withdiscriminatory intimidation, ridicule, and insult sufficiently severe or pervasive to alter the conditions of his employment and create an abusive working environment.  In re Mestas, CSA 37-05, 8 (8/4/05), citing Bloomer v. UPS, 94 Fed. Appx. 820 (10th Cir. 2004).  See also In re Garcia, CSA 175-04, 7 (7/12/05).

Whether an environment is hostile or abusive can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee’s work performance.  In re Garcia, CSA 175-04, 7 (7/12/05).

Harassment is a theory of discrimination which allows an employee to establish harm without proof of an adverse employment action such as discipline or termination.  In re Roberts,CSA 179-04, 6 (6/29/05).

Harassment is not a basis for discrimination; i.e., it does not substitute as proof of membership in a protected group.  In re Roberts, CSA 179-04, 6 (6/29/05).

Under the Career Service Rules, a claim of harassment is perfected when an employee reports the unwelcome conduct to a supervisor in compliance with §15-103 B.  Only the supervisor's disposition of such a report may be appealed pursuant to § 19-10 f).  In re Roberts, CSA 179-04, 6 (6/29/05).

To establish a prima facie case of hostile work environment, appellant must show that under the totality of the circumstances 1) the harassment was pervasive or severe enough to alter the terms, conditions, or privileges of employment, and 2) the harassment was racial or stemmed from an unlawful animus.  In re Martinez, CSA 144-04 (6/21/05).

A showing of pervasiveness requires more than a few isolated incidents of racial enmity.  An appellant must produce evidence to show the workplace was permeated with discriminatory intimidation, ridicule, and insult sufficiently severe or pervasive to alter the conditions of her employment and create an abusive working environment.  In re Martinez, CSA 144-04 (Order 6/21/05), citing Bloomer v. UPS, 94 Fed. Appx. 820 (10th Cir. 2004).

Jurisdiction over a harassment claim requires a basic statement of the facts tending to make a colorable claim that the action complained of was taken against the employee because of membership in a protected class.  In re Yardeny, CSA 26-05 (6/2/05), citing In re Hull, CSA 139-02, 2 (9/18/02); In re Douglas, CSA 317-01 (4/3/02); and In re Montabon, CSA 21-02, 7 (11/8/02).

Harassment is the creation of a hostile work environment.  Whether an environment is hostile or abusive can be determined only by looking at all the circumstances.  These may include the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. The effect on the employee's psychological well-being is relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required.  In re Hurdelbrink, CSA 109-04, 119-04, 6 (1/5/05), citing Pa. State Police v. Suders, 124 S. Ct. 2342, 2352 (U.S. 2004); Mitchell v. City & County of Denver, 2004 U.S. App., LEXIS 21188 (10th Cir. 2004); Harris v. Forklift Systems, 510 U.S. 17 (U.S. 1993).  

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No Violation Found

 Appellant who presented no evidence that supervisor conditioned an employment benefit upon sexual favors or conduct failed to establish claim of quid pro quo sexual harassment.   In re Norman-Curry, CSA 28-07 and 50-08, 10 (2/27/09). 

Appellant failed to establish sexual harassment claim where: appellant's assertions as to physical contact were inconsistent; none of the witnesses observed the alleged offensive contact that was the basis for the claim; the appellant failed to mention the offensive contact to the investigator of the incident; and the alleged victim of similar conduct recanted her claim.   In re Norman-Curry, CSA 28-07 and 50-08, 12 (2/27/09). 

Appellant failed to establish racial and sexual harassment claims based upon allegation that supervisor targeted minorities about their hair where she offered no evidence regarding the frequency or severity of the conduct, or whether it was physically threatening or humiliating or a mere offensive utterance, or whether it unreasonably interfered with deputies' work performance.   In re Norman-Curry, CSA 28-07 and 50-08, 12 (2/27/09), citing EEOC v PVNF, L.L.C., 2007 U.S. App. LEXIS 11276 (10th Cir. 2007). 

Appellant failed to establish claim of harassment based on his failure to state his protected status or an extreme incident or pattern of behavior constituting an alteration of workplace conditions.  In re Macieyovski, CSA 62-06, 6 (12/14/06).

Appellant who presented no testimony that her working conditions were intolerable based upon any protected status failed to establish claim of harassment.  In re Foley, CSA 19-06, 14 (11/10/06).

Harassment claim was not established where appellant presented no evidence that the “needs improvement” PEPR was caused by her membership in any class protected from discrimination or harassment under § 15-100.  In re Padilla, CSA 25-06, 12 (9/13/06).

Evidence that supervisor required appellant to type reports due to poor handwriting and that supervisor frequently communicated others’ complaints about him to appellant did not establish that appellant was harassed by supervisor on the basis of national origin or age.  In re Hernandez, CSA 03-06, 11 (5/3/06), citing Shorter v. ICG Holdings, Inc., 188 F.3d 1204, 1207 (10th Cir. 1999); Bloomer v. UPS, 94 Fed. Appx. 820, 825 (10th Cir. 2004).

Allegations that new work and office assignments and denial of attendance at a conference constituted harassment were not supported by a showing that they were imposed because of appellant’s protected status, or that they were so severe or pervasive as to alter the conditions of employment and create an abusive work environment.  In re Lewis, CSA 22-06, 3 (5/2/06), citing Faragher v. City of Boca Raton, 524 U.S. 775 (1998).

Retirement was voluntary rather than proof of constructive discharge caused by harassment when appellant failed to show that his working conditions were objectively unendurable as viewed by a reasonable person.  In re Lewis, CSA 22-06, 3 (5/2/06).  

Three unpleasant encounters with a supervisor over the course of three years do not establish a pervasive pattern of actions creating a hostile or offensive work atmosphere.  In re Crenshaw, CSA 18-06, 3 (4/6/06).

Conduct that was not frequent, severe, or physically threatening, and that did not unreasonably interfere with work performance does not establish the existence of a hostile work environment.  In re Crenshaw, CSA 18-06, 3 (4/6/06), citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).

Supervisor’s angry orders do not constitute a tangible employment action needed to prove racial harassment.  In re Crenshaw, CSA 18-06, 2 (4/6/06).

Evidence does not show supervisor’s order for training and performance notes raised claim of hostile work environment on the basis of sex.  In re Johnson, CSA 135-05, 4 (3/10/06). 

Harassment claim based on co-worker incident that was immediately corrected by supervisor, among other incidents, was not established when appellant failed to file an internal complaint before filing an appeal, and the evidence showed that other employees were similarly affected by the remaining incidents.  In re Schultz, CSA 130-05, 3 (2/27/06).  

Appellant’s admission that his supervisor immediately dealt with his complaint of harassment by his co-workers negated his claim under § 15-100 et seq.  In re Schultz, CSA 130-05, 3 (2/27/06).

When appeal is of a grievance, appellant may not raise harassment for the first time on appeal.  Grievance must have given agency meaningful notice and an opportunity to respond to the allegations before the issue is ripe for appeal.  In re Mallard, CSA 129-05, 3 (2/23/06), citing In re Douglas, CSA 317-01, 12 (3/22/02); In re Prater, CSA 156-98 (9/23/99).

Appellant’s statement that another employee took “harassing and hostile actions” fails to establish how agency workspace assignment created hostile work environment.  In re Herzog,CSA 23-05 (Order 5/26/05).

Complaints that supervisor was unfair, told appellant she was not doing her job, embarrassed her in front of co-workers, and told her she would “suffer the consequences” if she called someone failed to prove actions that were pervasive or severe enough to alter the terms, conditions, or privilege of the appellant’s employment.  In re Van Dyck, CSA 143-05 (Order 2/16/06). 

Where appellant failed to notify agency of his harassment grievance, motion to dismiss was properly granted.  In re Mallard, CSA 129-05, 3 (2/23/06) (decided under former §9-61).

Harassment appeal is premature when appellant did not file a formal harassment complaint before filing appeal.  In re Schultz, 78-05 (Order 8/15/05).

No work environment harassment established where appellant’s only evidence was that a prior supervisor asked her not to speak Spanish on some unspecified date.  In re Garcia, CSA 175-04, 7 (7/12/05).

Hearing officer has no jurisdiction over harassment claim when supervisor about whom complaint was made no longer works for agency.  In re Ligouri, CSA 76-04, 108-04 (Order 6/29/05).

Appellant’s allegations of harassment including “telling me to go back to my  hole;” “embarrassed me in front of coworkers;” “gave my [computer] replacement to another employee;” “excluded me from the official introduction to our new Manager of Safety;” and that “(an employee’s) demeanor was not kind toward me” are insufficient to establish the workplace was permeated with discriminatory intimidation, ridicule, and insult sufficient to alter the conditions of her employment, prerequisite to a finding of harassment.  In re Martinez, CSA 144-04 (Order 6/21/05).

Where appellant’s only evidence of harassment was his testimony that another employee called him an offensive name, no harassment was found.  In re Owoeye, CSA 11-05, 7 (6/10/05).

Where no evidence linked appellant’s age or political affiliation to a series of workplace events that frustrated appellant, appellant failed to prove a hostile work environment.  In re Hurdelbrink, CSA 109-04, 119-04, 7 (1/5/05).

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OHR Employee Relations Unit
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