Investigators Report: E07-0458

b) (Complainant) His vehicle had been “keyed” by the boyfriend, costing Complainant $300 to repair.

6) Events of 3/26/07 to 4/4/07:

a) (Complainant) He reported the incident with the boyfriend/customer verbally to his district manager, and in writing to Ms ERM of Respondent.

b) A few days after the incident, Customer 1, who was renting a movie at Respondent, informed him (Complainant) that Ms RH (who had been racially harassing him) remarked to the customer - who asked if Complainant was available- “Can you figure out that I hate my manager? I feel like I could just blow his car up. I really detest him.” The customer told her that he did not want to hear these comments. She said, “oh no, I have told him that I know where he lives, and that I want to actually blow his friggin car up.” The customer left with his movie.

c) Customer 1 also informed him at a later date, that when the customer later came to the store to speak to Complainant, and asked where he was, Ms RH told the customer that Complainant would not be an employee long as “the big wigs are coming tomorrow, and his ass is friggin fired.”

7) The following is offered regarding Complainant termination:

a) (Respondent, through counsel)

Respondent denies that no action was taken following Complainant's March 11 letter. Ms. ERM thoroughly investigated the matter, and it was during this investigation that Ms ERM learned that Ms RH had told a customer, on or around March 29, 2007, that Ms RH wanted to blow up Complainant’s car. Upon learning this, Ms ERM recommended that Ms RH immediately be terminated for engaging in inappropriate conduct directed at Complainant. Ms RH was terminated on April 4, 2007.

Respondent also investigated the altercation between Ms RH’s boyfriend and Complainant. Respondent determined that it was inappropriate and against company policy for Complainant to have followed the boyfriend out of the store into the parking lot, and concluded that Complainant pushed the boyfriend. As a result, the decision was made to terminate Complainant.

Respondent admits that Complainant called Ms. ERM after he was terminated. Ms. ERM, however, adamantly denies telling Complainant that his termination was to avoid potential racial violence. Instead, Ms. ERM reiterated that Complainant was terminated for following Ms. RH’s boyfriend into the parking lot and for pushing him.

b) (Complainant, through counsel)

Complainant was terminated because of his race.

Ms ERM admitted to Complainant on April 4, 2007 that he was being terminated to “avoid an escalation of potential racial violence against you.” In other words, Complainant was terminated because he was the target of hatred, harassment, and threats because he was Hispanic. From Ms ERM’s words, it becomes clear that Respondent found Complainant’s race and the bigotry that it caused at the Bucksport store to be a hassle. They addressed the issue by firing Complainant.

Complainant was born in the United States. The discrimination in this case is most appropriately characterized as based on race and ancestry.

V. ANALYSIS:

1) The Maine Human Rights Act requires the Commission to “determine whether there are reasonable grounds to believe that unlawful discrimination has occurred.” 5 M.R.S.A. § 4612(1)(B). The Commission interprets this standard to mean that there is at least an even chance of Complainant prevailing in a civil action.

2) Here, Complainant alleges that he was subjected to a hostile work environment on the basis of his race and ancestry and that he was terminated because of his race and in retaliation for complaining about unlawful harassment. Respondent denies that unlawful discrimination occurred.

HOSTILE WORK ENVIRONMENT

3) The Maine Human Rights Act provides, in part, as follows:

It is unlawful employment discrimination, in violation of this Act . . . for any employer to . . . because of . . . race [or] ancestry . . . discriminate with respect to the terms, conditions or privileges of employment or any other matter directly or indirectly related to employment. . . .” 5 M.R.S.A. § 4572(1)(A).

4)The Maine Human Rights Commission Regulations provide, in part, as follows:

Harassment on the basis of race [or ancestry] is a violation of Section 4572 of the Maine Human Rights Act. Unwelcome … verbal or physical conduct of racial nature [or based on a person’s ancestry] constitute [unlawful] harassment when: . . .

b) such conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

Me. Hum. Rights Comm'n Reg. §§ 3.09(F)(1)(c), 3.11(H)(1)(c).

5) "Hostile environment claims involve repeated or intense harassment sufficiently severe or pervasive to create an abusive working environment." Doyle v. Dep't of Human Servs., 2003 ME 61, 23, 824 A.2d 48, 57. In determining whether an actionable hostile work environment claim exists, it is necessary to view "all the circumstances, including 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." Id. (citations omitted). It is not necessary that the inappropriate conduct occur more than once so long as it is severe enough to cause the workplace to become hostile or abusive. Id; Nadeau v. Rainbow Rugs, 675 A.2d 973, 976 (Me. 1996). "The standard requires an objectively hostile or abusive environment--one that a reasonable person would find hostile or abusive--as well as the victim's subjective perception that the environment is abusive." Nadeau, 675 A.2d at 976.

6) Accordingly, to establish a case of hostile work environment harassment on the basis of race or ancestry, Complainant must prove the following:

a) That he was subjected to unwelcome harassment.

b) That the harassment was based upon his race or ancestry.

c) That the harassment was sufficiently severe or pervasive so as to substantially interfere with his work performance or create an intimidating, hostile, or offensive working environment.

d) That the harassment was objectively and subjectively hostile or abusive, such that a reasonable person would find hostile or abusive and Complainant found to be so.

7) Moreover, to hold Respondent liable, the following standard is applicable:

[A]n employer is responsible for acts of racial [or ancestry] harassment in the workplace where the employer, or its agents or supervisory employees, knows or should have known of the conduct. An employer may rebut apparent liability for such acts by showing that it took immediate and appropriate corrective action.

Me. Hum. Rights Comm'n Reg. §§ 3.09(F)(3), 3.11(H)(3).

8) Analysis of the information, records, and documents regarding Complainant’s allegations of race and ancestry harassment follows:

a) Complainant is able to establish a hostile work environment based on race and ancestry by showing the following:

i) He was subject to unwelcome race and ancestry remarks, and insubordinate conduct by an employee whom he supervised.

ii) The harassment was based on Complainant’s Hispanic race and ancestry.

iii) The harassment was ongoing from the time Complainant becomes store manager until he was dismissed; was sufficiently severe and pervasive so as to alter the conditions of his employment, as Ms RH's bias and dislike of Complainant and insubordination toward him altered the conditions of his employment, causing him to perform several duties, ordinarily duties assigned to the alleged harasser, himself, rather than be subjected to additional abuse in the workplace.

iv) A reasonable person under like circumstances would have found the environment hostile and abusive, as Complainant did.

b) Complainant reported verbal reports of the harasser’s comments and undermining actions to the District Manager, and written reports to the Employee Relations Manager, thereby establishing liability to the employer, Respondent.

c) The employer asserts that “Complainant made no mention that he believed (Ms RH’s) hostility to him to be racially motivated.”

Complainant replies:

That he specifically informed the District Manager of Ms RH’s specific comments such as “your kind”, “you people“, “go back where you came from,” …“I don’t take orders from no spic…” and

The District Manager told Complainant “my hands are tied” or words to that effect.

The employer’s claim of lack of knowledge of unlawful race and color harassment is rejected.

Complainant is able to demonstrate that the race and ancestry harassment to which he was subjected by a co-worker, who conveyed her racist hatred to her boyfriend and customers, is unlawful.

WHISTLEBLOWERS’ PROTECTION ACT & RETALIATION

9) With respect to Complainant’s retaliation claim, the Maine Human Rights Act prohibits termination because of previous actions that are protected under the Whistleblower Protection Act (“WPA”). See 5 M.R.S.A. § 4572(1)(A). The WPA protects an employee who “acting in good faith . . . reports orally or in writing to the employer . . . what the employee has reasonable cause to believe is a violation of a law or rule adopted under the laws of this State, a political subdivision of this State or the United States [or] has reasonable cause to believe is a condition or practice that would put at risk the health or safety of that employee.” 26 M.R.S.A. § 833(1)(A) & (B). 

10) The Maine Human Rights Act also makes it unlawful for “an employer . . . to discriminate in any manner against individuals because they have opposed a practice that would be a violation of [the Act] or because they have made a charge, testified or assisted in any investigation, proceeding or hearing under [the MHRA].” 5 M.R.S.A. § 4572(1)(E).

11) In order to establish a prima-facie case of retaliation in violation of the WPA, Complainant must show that he engaged in activity protected by the WPA, he was the subject of adverse employment action, and there was a causal link between the protected activity and the adverse employment action. See DiCentes v. Michaud, 1998 ME 227, ¶ 16, 719 A.2d 509, 514; Bard v. Bath Iron Works, 590 A.2d 152, 154 (Me. 1991).

12) In order to establish a prima-facie case of Maine Human Rights Act retaliation, Complainant must show that he engaged in statutorily protected activity, he was the subject of a materially adverse action, and there was a causal link between the protected activity and the adverse action. See Doyle v. Dep't of Human Servs., 2003 ME 61, ¶ 20,824 A.2d 48, 56; Burlington Northern & Santa Fe Ry. v. White, 126 S. Ct. 2405 (2006). The term “materially adverse action” covers only those employer actions “that would have been materially adverse to a reasonable employee or job applicant. In the present context that means that the employer's actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Burlington Northern, 126 S. Ct. 2405.

13) One method of proving the causal link is if the adverse job action happens in “close proximity” to the protected conduct. See DiCentes, 1998 ME 227, ¶ 16, 719 A.2d at 514-515.

14) The prima-facie case creates a rebuttable presumption that Respondent retaliated against Complainant for engaging in WPA or MHRA protected activity. See Wytrwal v. Saco Sch. Bd., 70 F.3d 165, 172 (1 st Cir. 1995). Respondent must then “produce some probative evidence to demonstrate a nondiscriminatory reason for the adverse action.” DiCentes, 1998 ME 227, ¶ 16, 719 A.2d at 515. See also Doyle, 2003 ME 61, ¶ 20, 824 A.2d at 56. If Respondent makes that showing, the Complainant must carry her overall burden of proving that “there was, in fact, a causal connection between the protected activity and the adverse action." Id.

15) Complainant is able to establish a prima facie case of retaliation in violation of the WPA and MHRA retaliation by proving:

a) He complained to management of a violation of law - race and color harassment, and threats of bodily harm, by an employee and her boyfriend.

b) He was dismissed within days after his report to his employer.

c) The report and the dismissal were in close proximity.

16) The employer asserts that Complainant dismissal resulted from Complainant’s following a customer out of the store into the parking lot, which was inappropriate and a violation of company policy.

Complainant replies that he left the store because the customer walked directly to Complainant’s vehicle and, as he feared, the boyfriend/customer “keyed” his vehicle.

Complainant asserts that when he called to ask why he was dismissed, the Employer Relations Manager informed him, “to avoid an escalation of potential racial violence to you.”

17) In the final analysis, it is found that there was in fact a causal connection between Complainant’s protected activity and his termination. Complainant provided verbal notice to his District Manager, and (later) written notice to the Employer Relations Manager of unlawful discrimination. The employer failed to respond by correcting or taking any remedial action until the day Complainant was fired.

Complainant was not only the victim of unlawful harassment, but was victimized by Respondent’s reaction to the customer’s/boyfriend rampage, demonstrating the depth of hatred and bias in the workplace. Complainant could have been suspended or warned for leaving the store, rather than dismissed.

It is found that Complainant whistleblowing, as the Employer Relations Manager allegedly expressed to Complainant on the phone- to avoid an escalation of racial violence to you- was a factor in his dismissal.

TERMINATION BECAUSE OF RACE

18) The Maine Human Rights Act also prohibits the discharge of an employee because of race and ancestry. 5 M.R.S.A. § 4572(1)(A).

19) Here, because it is found that Complainant’s employment was terminated in order to avoid an escalation of racial violence against him, it is also found that his employment was terminated because of his Hispanic race.

VI. RECOMMENDATION:

For the reasons stated above, it is recommended that the Maine Human Rights Commission issue the following finding:

1) There are Reasonable Grounds to believe that unlawful race, ancestry, and Whistleblower Protection Act and Maine Human Rights Act retaliation discrimination has occurred against Complainant by Respondent.

2) That conciliation be attempted in accordance with 5 M.R.S.A. § 4612(3).