City of Hastings responds to discrimination claim

CITY OF HASTINGS’ POSITION STATEMENT ON CHARGE OF DISCRIMINATION BY SGT. CLEON BROWN

Sgt. Cleon Brown was hired by the Hastings Police Department (HPD) as a patrol officer on April 13, 1998.  He was promoted to Sergeant on January 30, 2016. 

In his Charge of Discrimination, Sgt. Brown alleges that he informed his fellow officers in November 2016 that he had just discovered through a commercial genetic test he was 18% African, although he did not identify which region of Africa his genetic test matched.  Soon after that, Brown alleges that Chief Pratt made a derogatory comment about his “race” and that on several other occasions from November 18 through December 9, 2016, the Mayor of the City made derogatory comments about his “race.”  Brown also alleges that an incident occurred on December 11, 2016, when “an African-American Santa head with 18% written on it was placed in his stocking on the department Christmas tree.” 

Sgt. Brown also claims that at various times in mid-December, another officer made comments “antagonizing” him about the harassment he had been dealing with.  Finally, he alleges that on December 23, 2016, a Caucasian officer made comments to Brown about harassing comments Brown had made to another officer regarding that officer’s daughter in an apparent attempt to downplay the harassment he was receiving regarding his African genetic test results.

In early November 2016, Sgt. Brown, in a very joking and jovial manner, informed several of his fellow officers that he had recently taken a DNA test through Ancestry.com and the results showed that he was 18% African American. [It should be noted that Ancerstry.com’s website does not include “African American” as a possible test result. Ancerstry.com states that the genetic test shows common characteristics of the genes being tested as compared to a database of genetic tests from various regions of the world. There are four geographic areas in Africa included in Ancerstry.com’s database, including Northern Africa. Ancerstry.com’s website also states that the test results do not definitively reveal where a person’s ancestors actually originated; only that there are shared characteristics in genes, which might or might not indicate a person’s ancestors are actually from that geographic region.]

Sgt. Brown joked about the other results of the test and there was some discussion about the accuracy of the test results. Brown initiated this conversation and the joking and banter that followed. The topic of Brown’s heritage was basically forgotten by the members of the Department until Brown would bring it up again so as to joke about it and do some mutual bantering with other officers about their heritage.  After a month or so of Brown originally bringing it up, even that ended.

During the holidays the HPD puts up a small Christmas tree and each HPD officer gets a stocking with their name on it.  Over the years, the officers have used this tradition to tease each other about a number of things by placing notes, pictures or other items in an officer’s stocking.  Most officers took part in this holiday tradition and it acted as a way to reduce the stress from their jobs.

During this most recent holiday season, a good friend of Brown found a tan color ceramic Santa head sitting in his own stocking with “18%” written on it.  Not knowing where it came from and knowing his friendship with Brown, the officer placed it in Brown’s stocking.  Another officer saw it and removed it from Brown’s stocking.  That officer mentioned his concern to the Chief. The Chief talked to Brown about this incident and told him that one of the officers thought Brown was upset by the incident.  Brown told the Chief he was not upset and that he was proud of his African heritage.  Chief Pratt acknowledged that he should be proud of his heritage.  Chief Pratt then instructed all of the officers that no further joking regarding Brown’s heritage would be tolerated.

The officer who placed the Santa in Brown’s stocking then went to Brown to apologize for doing so, since he heard that Brown was upset about this incident.  Sgt. Brown emphatically denied that he ever complained about it or that he was upset or offended by it and he even seemed confused that the issue was being raised.

To the City’s knowledge that was the last incident involving any teasing, joking or comments about Brown’s claimed African genetic test results.  It was not until early February 2017 that Brown asserted for the first time that he took offense to some comments and events that referenced the results of his genetic testing.

In order to prevail on a claim of racial harassment, a claimant must show that (1) he is a member of a protected class; (2) he was subjected to unwelcome racial harassment; (3) the harassment was based on race; (4) the harassment unreasonably interfered with the claimant’s work performance by creating an intimidating, hostile, or offensive work environment; and (5) the employer is liable for the harassment.  Barrett v. Whirlpool Corp., 556 F.3d 502, 515 (6th Cir. 2009). 

To be actionable, the harassment must be severe or pervasive both objectively and subjectively; “in other words, the conduct must be so severe and pervasive as to constitute a hostile or abusive working environment both to the reasonable person and the actual victim.”  Randolph v. Ohio Dep’t. of Youth Servs., 453 F.3d 724, 733 (6th Cir. 2006).  Typically, a plaintiff must show that he was subjected to “repeated slurs” that adversely affected his ability to perform his job.  Davis v. Monsanto Chemical Co., 858 F.2d 345 (6th Cir. 1988), cert denied, 490 US 1110 (1989).

Evidence of stray, isolated, or ambiguous comments is not enough to establish a hostile work environment.  Rabidue v. Osceola Ref. Co. Division of Texas-American Petrol Chemicals, 805 F.2d 611, 620 (6th Cir. 1986), cert denied, 481 US 1041 (1987).  Similarly, mere “offensive utterances” are not actionable.  Clay v. UPS, 501 F.3rd 695 (6th Cir. 2007). 

With regard to the first element of the Meritor test, i.e., claimant is a member of a protected class, a threshold question exists as to whether Sgt. Brown is, indeed, a member of a protected class.  Even assuming the validity of the commercial genetic test (a questionable proposition), the racial discrimination laws were not designed to protect those who can demonstrate some trace amount of a particular race or geographic origin through testing. “Discrimination stems from a reliance on immaterial outward appearances that stereotype an individual with imagined, usually undesirable, characteristics thought to be common to members of the group that shares these superficial traits. It results in stubborn refusal to judge a person on his merits as a human being. Our various statutes against discrimination express the policy that this refusal to judge people who belong to various, particularly disadvantaged, groups is too costly to be tolerated in a society committed to equal individual liberty and opportunity.” Eriksen v. Allied Waste Sys., Inc., No. 06-13549, 2007 WL 1003851, at *4-5 (E.D. Mich. Apr. 2, 2007)

Obviously, individuals who discover the existence of some genetic markers through testing are not within the group of persons the anti-discrimination laws were meant to protect.  These statutes were meant to provide redress and legal recourse to a class of individuals who have experienced historic discrimination and harassment because of the color of their skin - not because a Caucasian discovers that his ancestry may be linked back centuries (or perhaps not at all) to an area of the African Continent.

Significantly, Sgt. Brown has held himself out to the world as being white for his entire life until he received the genetic test results. “When bringing an action under Title VII African-Americans do not have to demonstrate that their relatives lived in Africa, or that they visit the site of their roots, or that they are involved in any kind of cultural activities associated with Africa. They only have to appear to be African-Americans to be deemed members of that protected class.” Perkins v. Lake Cty. Dep't of Utilities, 860 F. Supp. 1262, 1276 (N.D. Ohio 1994). “In the opinion of this Court, it is the employer's reasonable belief that a given employee is a member of a protected class that controls this issue. This Court believes that, consistent with the intent of Title VII, when racial discrimination is involved perception and appearance are everything. As with the joy of beauty, the ugliness of bias can be in the eye of the beholder.” Perkins v. Lake Cty. Dep't of Utilities, 860 F. Supp. 1262, 1277-78 (N.D. Ohio 1994). The City of Hastings has never considered Sgt. Brown to be African-American. More importantly, neither has Sgt. Brown.

It is important to note that there have not been any classes that have applied the same “regarded as” test to racial harassment cases as has been applied to cases involving disabilities under the Americans With Disabilities Act (“ADA”).  The ADA specifically provides for a cause of action in favor of someone who has been “regarded as” disabled when they really were not.  This same protection does not apply under ELCRA and Title VII.

As a result of the foregoing, Sgt. Brown fails to meet even the first element of the test required to sustain a racial harassment claim.

The second element of the Meritor test requires Brown to show that the alleged racial harassment was unwelcomed.  For conduct to be deemed harassing, it must be unwelcomed in the sense that the plaintiff did not solicit or invite it and the plaintiff viewed the conduct as offensive.  See, Clegg v. Falcon Plastics, Inc., 174 Fed. Appx. 18, 25n. 7 (3rd Cir. 2006). It is undisputed that when Sgt. Brown found out in mid-November last year that the results of the commercial genetic test demonstrated an 18% African “match” he made a point of sharing that information with fellow officers.  As stated earlier, he did so in a joking way with great frivolity.  In fact, Sgt. Brown joked about it in racially derogatory ways such as suggesting the he now knows why he “likes chicken so much;” “the 18% is all in my pants;” and other similarly inappropriate and derogatory comments and stereotypes.

Other officers have stated that after Brown first told them about the test reults they never approached him about it again.  Instead, it was Brown who specifically went to other officers, raised the topic, joked about it, and engaged in typical racial stereotypes.  Clearly, Sgt. Brown welcomed his interaction with other officers on this topic.

Another factor in determining whether or not comments or incidents of alleged harassment were unwelcomed by a claimant is the person’s past conduct.  At least one court has determined that past conduct by a claimant regarding that person’s history of discriminatory conduct on his own part undermines claims of unwelcomed conduct.  See, Bryant v. Wilkes-Barre Hospital Co., LLC, No. CV 3:14-1062, 2016 W.L. 3615264, at *3 (M.D.Pa. July 6, 2016).

In this case, numerous officers have stated that Sgt. Brown oftentimes made derogatory, inappropriate, insensitive, and rude comments about African-Americans as well as other members of protected classes. Brown was told these comments were offensive by the people he was speaking with at the time.  However, Sgt. Brown had a reputation for always joking about sensitive subjects and saying whatever he felt like saying whenever he felt like saying it.  Because all of the officers are friends and had to work together, they ignored it.  However, these comments clearly go to Sgt. Brown’s credibility and his allegations that the few stray remarks made to him concerning his test results were unwelcomed and offensive. 

The fourth element of the Meritor test in order to prevail on a claim of racial harassment requires that the harassment unreasonably interfered with the individual’s work performance by creating an intimidating, hostile, or offensive work environment.  This typically requires the harassment to be severe or pervasive, both objectively and subjectively.   Once again, Brown cannot meet his burden in proving this element of the test.

If Brown does not subjectively perceive the environment to be abusive, the conduct has not actually altered the condition of the victim’s employment and there is no cause of action.  Newman v. Federal Express Corp., 266 F.3d 401 (6th Cir. 2001).  In this case, the facts show that not only did Brown invite the joking and banter regarding racial stereotypes because of his African heritage but he never found them to be abusive or hurtful toward him. 

It is well settled that in determining whether a Claimant has been subjected to any behavior that would unreasonably interfere with his work performance and create a hostile work environment, the court must consider “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.”  Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993) (Emphasis added).  As the U.S. Supreme Court indicated in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), “[S]imple teasing … offhand comments, an isolated incidence (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.”  Harassment must be ongoing, rather than a set of isolated or sporadic incidence.  Clark v. United Parcel Service, 400 F.3d 341, 351 (6th Cir. 2005).  Sgt. Brown’s own version of what occurred does not meet this standard.

Finally, the fifth element of the Meritor test requires that the employer must be liable for the harassment, i.e., respondeat superior.  In order for the City to be liable for claims of harassment that meet the other four elements of the test, (which Brown does not do), employers must fail to implement prompt and appropriate corrective action once they become aware of such harassment.  In this case, Sgt. Brown did not even mention the fact that he was offended by any comments made by any fellow officers back in November and December 2016 regarding the test results until early February 2017. At that time, Chief Pratt immediately inquired as to whether any other incidents had occurred relating to Brown’s claim of African heritage. Brown mentioned the black Santa being in his Christmas stocking.  Chief Pratt informed Brown that he had handled that situation right away by making sure the Santa was removed and the individuals who saw it were informed that there would be no more joking with Brown about his genetic test results.  Indeed, even Brown’s own allegations made in his Charge of Discrimination acknowledge that no further incidents or comments were made after December 23, 2016.

After this meeting with Brown, Chief Pratt and Deputy Chief Boulter spoke with the City Manager and informed him of the harassment allegations.  Chief Pratt again informed Brown that offensive behavior and comments concerning Claimant’s race would not be tolerated.  Chief Pratt was concerned that many of these comments were initiated by Brown.  However, he informed Brown that all of that would cease immediately.  Sgt. Brown was then informed that steps had already been taken or would be taken to prevent any illegal harassment from occurring at HPD.

Since the city took appropriate action to prevent illegal harassment relating to not only Brown’s situation but also any matter involving illegal harassment or discrimination, the City is not liable for the harassment.

Sgt. Brown cannot demonstrate the elements necessary to prevail on a claim of illegal racial harassment with regard to the allegations contained in his Charge of Discrimination. 


 

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