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TURNER v. BARR

January 13, 1993

ROBERT S. TURNER, Plaintiff,
v.
WILLIAM P. BARR, Defendant.



The opinion of the court was delivered by: CHARLES R. RICHEY

 INTRODUCTION

 This is a disparate treatment case against the U.S. Marshal's Service in which the plaintiff, a 47 year old white male of the Jewish faith, claims that his employer violated his rights under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-16(a), in that the terms and conditions of his employment as a Deputy U.S. Marshal at the D.C. Superior Court violated his rights to a work environment free from religious, ethnic, or racial discrimination.

 Trial was held in this case on November 23 and 24, 1992. The Court, after careful consideration of all the evidence and the underlying law, concluded that the Plaintiff was subjected to a hostile work environment in violation of Title VII, and that a disciplinary action taken against him was the product of that hostile working environment. Consequently, the Court entered judgment on the Complaint for the Plaintiff on November 25, 1992. The Defendant has filed a Motion to Alter and Amend Judgment, asking this Court to vacate its Order of November 25, 1992, on the ground that the Order and accompanying Memorandum Opinion are based upon an incorrect application of the facts to the law in this case. After carefully considering the submissions of the parties, the applicable law, and the entire record herein, the Court must deny the Defendant's Motion.

 DISCUSSION

 I. THE DEFENDANT AGREES THAT HOSTILE WORK ENVIRONMENT CLAIMS ARE COGNIZABLE UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED, AS DISCRIMINATION ON THE BASIS OF RACE AND RELIGION.

 The Defendant, as well as the Plaintiff, recognizes that hostile work environment claims are cognizable under Title VII of the Civil Rights Act of 1964, as amended. See Defendant's Memorandum of Points and Authorities in Support of Motion to Alter and Amend Judgment, at 1; Plaintiff's Memorandum of Points and Authorities in Opposition to Defendant's Motion to Alter and Amend Judgment, at 2. Indeed, the Defendant does not disagree with the legal principles set forth in this Court's Memorandum Opinion of November 25, 1992, but rather with their application to the facts as the Court found them in this case. See Defendant's Motion to Alter and Amend Judgment, at 1. Consequently, the Court relies on the thorough statement of the applicable legal principles as set forth in its Memorandum Opinion of November 25, 1992, as well as the parties' memoranda addressing the instant motion, and need only set forth here a summary of the relevant law.

 Title VII prohibits employers from creating or condoning a hostile work environment based upon incidents of harassment or unequal treatment. See Meritor Savings Bank v. Vinson, 477 U.S. 57, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986). A single incident, without more, does not give rise to a cause of action; a Plaintiff must show "a pattern or practice of harassment" in order to fall under the protection of Title VII. Bundy v. Jackson, 205 U.S. App. D.C. 444, 641 F.2d 934, 943 n.9 (D.C. Cir. 1981). However, the harassment need not take the form of incidents with clearly racial or religious overtones; "any harassment or other unequal treatment of an employee" caused by the race or religion of the employee may create a violation of Title VII. See McKinney v. Dole, 246 U.S. App. D.C. 376, 765 F.2d 1129, 1138 (D.C. Cir. 1985). An employer will be liable for discriminatory conditions under two circumstances: (1) if the harasser is the employer or one of its agents, or supervisory personnel, Bundy, 641 F.2d at 943; Sparks V. Pilot Freight Carriers, Inc., 830 F.2d 1554 (11th Cir. 1987), or (2) the employer knew or should have known of harassment caused by coworkers, but failed to take corrective action. See Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317 (7th Cir. 1992).

 Neither of the parties disagrees with these principles of law. Rather, the Defendant claims that the facts found by this Court in its November 25, 1992, Opinion, do not satisfy these legal standards. Upon review, however, the Court must conclude that the factual findings clearly indicate that the Defendant knew or should have known, both directly and indirectly, about the harassment to which the Plaintiff was subjected. Consequently, the Defendant is liable for the hostile work environment which it created and condoned.

 II. THE FACTS CLEARLY INDICATE THAT THE PLAINTIFF WAS SINGLED OUT BECAUSE OF HIS ACE AND RELIGION AND SUBJECTED TO HARASSMENT, AND THAT THIS HARASSMENT MAY BE ATTRIBUTED, BOTH DIRECTLY AND INDIRECTLY, TO HIS SUPERVISORS AND THE DEFENDANT AS HIS EMPLOYER.

 This Court's Memorandum Opinion of November 25, 1992, set forth the Court's findings of fact in this case. The Court bound a number of incidents had occurred which indicated that the Plaintiff was subjected to a hostile work environment. The Defendant's current motion claims that these incidents cannot be attributed to the Defendant as employer because the Defendant and its supervisors were unaware of the incidents. However, the evidence indicates that the Plaintiff's supervisors were aware of most of the incidents and participated in at least one of the incidents. Although the incidents are set out in full in the November 25, 1992, Opinion, the Court will briefly restate them here to show how they indicate the existence of a hostile work environment. The Court notes, as it did in its November 25, 1992, Opinion, that it found the Plaintiff to be a very credible witness whose memory and demeanor impressed the Court as being complete and sincere and who presented more that a preponderance of the evidence to sustain his burden of proof as to each of the elements of his claim.

 (1) The Plaintiff was required to suffer reference to the Holocaust by one of the supervisory Deputies. The Deputy related a joke about the Holocaust. The Deputy stated that the cost of Germany's reconstruction after World War II was high because of its high gas bill during the War. The Defendant concedes that this joke may be taken by the Court as an indication that the Plaintiff suffered discrimination on account of his religion. Further, because the joke was made by a supervisor, the defendant can be held responsible.

 The Defendant claims, however, that from this single incident, no inference may be drawn of a hostile work environment. If this incident were isolated, the Defendant would be correct. However, the Court may take this incident, along with the others attributable to the Defendant, as evidence of a hostile work environment because it was not a single, isolated event. See Carter v. Duncan-Huggins, Ltd., 234 U.S. App. D.C. 126, 727 F.2d 1225, 1236 (D.C. Cir. 1984) (deciding how much weight to give a particular incident is a question for the fact-finder).

 (2) The Plaintiff was denied the opportunity to work overtime in an amount comparable to many of the Deputies in his office who were not white or Jewish. The assignment of overtime is a supervisory function, and the Defendant does not dispute that knowledge of disparities in ...


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