*1 CONCLUSION foregoing we affirm the
For the dismissing ap- of the Board Perez’s jurisdiction. lack of peal for AFFIRMED. NEWTON, Petitioner,
Donald C. AIR DEPARTMENT OF The FORCE, Respondent.
No. 95-3293. Appeals, States Court of United Federal Circuit. 4, 1996. Plater, Taylor, Taylor, Michael A Moore & Rehearing Denied June 1996. Oklahoma, City, argued, peti- Oklahoma for
tioner. AFLSA/JACL,
Major Claypool, David W. Arlington, Virginia, argued respondent. Col., U.S.AF., Wilson, Timothy D. Lt. Chief Branch, Litiga- Personnel Civilian General Division, Legal Agen- tion Force Services Guillory, Captain, P. Clarence U.S.AF., Attorney, Legal Trial Arlington, Virginia, Agency, were on Services brief, respondent. MICHEL, PLAGER, Before LOURIE, Judges. Circuit
Opinion for the court filed Circuit Judge Dissenting opinion MICHEL. filed Judge Circuit PLAGER. MICHEL, Judge. Circuit appeals Donald C. Newton from the De- Sys- cember 1994 decision of the Merit (Board), No. DA- tems Protection Board 0680-1-1, sustaining one of two 0752-94— (Air Department Air Force’s Force) charges against Newton and its deci- him. The Administrative sion to remove (AJ) final Judge’s initial decision became when, January time within *2 race, color, petition for review the full 29a: Discrimination based on which to file sex, appeal religion, origin, age, expired. Board was submitted national or handi- 4, argument capping after oral on March condition. for decision Includes sexual dispute making no Also 1996. Because there can be harassment. includes slurs, disseminating or ethnic or acts Newton violated the Air literature his admitted containing regulation under which he was such slurs. Consider circum- penal- person(s) stances and the effect on the charged, and the Air Force’s choice of against, discriminated use of lan- ty the bounds of its discre- abusive does not exceed guage, insulting violent tionary authority, affirm. treatment de- we
meanor. BACKGROUND Penalty Reprimand for First Offense: to 5-Day Suspension. engine aircraft Newton worked as an re- If 29b: the discrimination was deliberate. pair supervisor at Tinker Air Force Base worked at Tinker Oklahoma. He had since supervisor manager If a NOTE: 1976, April supervisor and as a since 1988. engaged in an act of a deci- sion should be made as to whether he or 18,1994, It is on June the reassigned changed she should be to a following supervising occurred: Newton was grade lower of a different during employees an overtime shift in Build- character. Lewis, Guy 3001 Tinker. African- Penalty Reprimand for First Offense: American, among group was that Newton Removal. Following supervising. was his return from lunch, mixing Newton took two chemical 8, August considering On after Newton’s sticks, approximately tall each two inches removal, response proposed to the Kenneth wide, and one inch and used some wire to Breshears, official, deciding removed shape form them into the of a cross. He August Newton effective 9. The removal cart, placed sprayed then the cross on decision imposed makes clear that Breshears alcohol, cross with and lit it on fire in the of removal after careful work area where Lewis and others were “Douglas consideration of all the so-called burned, working. As the cross factors.” called Lewis’ attention to it. Newton then appealed removal the Board put the fire out and returned to work. August primary 26. Newton’s contention Monday, On June the incident was was that he had not discriminated reported Paul Thomas. Thom- Lewis because he had not intended to do questioned employees a number of about joke more than with him. On December and, day, placed later that Newton on non- conducting hearing, after the AJ issued his duty pay status. The incident attracted local sustaining both the first of the coverage, media both television and cy’s charges “engaging two in delib- —that papers. local erate racial actions toward a mi- subordinate nority employee” appropriateness By proposed letter dated June Thomas —and penalty. of removal as a The AJ credited proposal Newton’s removal. Newton’s contention that meant he cited Newton’s “deliberate actions on 18 June joke with Lewis but nevertheless concluded 1994 that are considered racial toward a sub- that the elements offense had minority employee” ordinate and “reckless proved: disregard safety on 18 1994 for the personnel charge appellant and the work environment.”1 The I find that the that the expressly engaged first was based on Item 29 in deliberate racial conduct to- 1982) (July AFR minority employee Attachment 40-750 wards a subordinate (“Guide Actions”). Disciplinary Item 29 actionable misconduct. further find that proscribes invidiously discriminatory appellant, by placing lighted Lewis, as follows: in front of did paint. 1. The work area where the incident occurred contained flammable hillbilly racial conduct towards a subordinate mi- a “white mother f—ker” or a “Elan ker,” nority employee, charged. appel- mother and that Lewis told f— fashioning Moore, lant’s behavior set- referencing appellant, “I’ll bet afire, ting showing it to Lewis hillbilly running mother f—ker is testified, rather than inadvertent con- appellant KKK.” The with cor- *3 racially Moore, duct. The conduct was offensive: roboration from that Lewis’ racial unnecessary explore burning it is what a unilateral, remarks were and that he did symbolizes respond African-Americans. in kind to Lewis. appellant may While the have intended at Despite factors, mitigating these I find merely joke the time of the incident to that the sustained of deliberate ra- Lewis, I find that his intentions are penalty cial conduct imposed by merits the not relevant the misconduct as is agency, disagree appel- so with the and, therefore, exculpato- are not arguments lant’s that the was too ry. Accordingly, I conclude that the appellant, experienced severe. The as an proven charge by preponder- a supervised leader who between 15 and 75 ance of the evidence. employees, properly was high held to a omitted). added; (Emphasis record citations standard of conduct occupied because he a clear, highlighted As the text makes the AJ authority. of trust and He knew equated term “deliberate” from Item 29b through training his that he needed to be phrase with the “not inadvertent.” aware of discrimination in the Therefore, obliged discipline he was em- Having only sustained one of the two ployees offensive conduct: not charges against the AJ undertook join Moreover, them in it. it must have re-analysis propriety an extended of the appellant been self-evident to the that he penalty. suggests removal as the taking joking was to an extreme points appeal various in his briefs on that the lighting the cross on fire in front of Lewis. penalty decision should be vacated because the AJ to consider all of the “fail[ed] relevant burning The for whatever analysis factors.” To read the AJ’s is reason, justified. cannot be It is not a know that this miseharacterization of the rec- quaint past artifact of our nation’s that can unavailing: ord is perceived repre- without emotion. It bigotry society sents that our has combat- I first note that there are a number of many years ted for but that still exists mitigating appellant’s factors in the favor. today. appellant The himself noted in his appellant Federally The has been em- testimony day on the same that the ployed April prior since with no facility reported incident at the disciplinary super- action. He has television, another cross was re- facility approximately visor at the six ported in Oklahoma. years, performance and his work for that period fully has been above successful. appellant’s engaging in such ex-
Further, appel- tremely that the serious misconduct affected not image lant acted without malice and without a as a in- facility intent lit when he the cross volved the entire as well. The testimony appellant acknowledged fire. The was uniform and there were appellant minority employees credible that did not use other in the area at racially provocative speech or treat his the time of the incident who could have in disparate subordinates or others man- seen the cross and not known that it was Further, joke. deciding ner based on their race. it is meant to be official appellant public perceived appel- unrebutted that the that the stated threat; joking relationship, had a and that Lewis lant’s actions as a racist that the frequently employed racially charged print lan- event was recounted local media television; guage relationship. appellant in that appellant and on and that the Timothy Ray potentially and co-worker Moore testi- created volatile situation appellant facility’s fied that placed reputation Lewis referred to the within the way, agree government “[t]he I as- asserts that Ad- community at risk. with his that, despite appellant’s Judge correctly found that Peti- abili- ministrative sessment ties, was in the best interests tioner’s conduct was inadver- his removal Therefore, tent, pub- although agency. while the and that Petitioner have joke, perception of the cross intended his conduct as a his intentions lic’s determining charge.” govern- be considered in are not relevant to the one factor to ment, AJ, equates propriety agency’s penalty, like the “deliberate” with dispositive it a critical and factor un- “not inadvertent.” discern no error find We of this circumstances of this case. the AJ’s construction the facts der the case. omitted). (Footnote, and record citations case reproduce decision at such We the AJ’s pro- The drafters of Item 29b chose to sensitivity length to demonstrate his to the *4 rather scribe “deliberate” many play. factors than, it, as Newton would have conduct un- decision, appeals Newton from the AJ’s discriminatory specific dertaken with intent. contending charge, properly that when First, nothing term there is about the “delib- understood, by supported is not substantial erate,” itself, by suggests considered evidence. Newton contends that specific that a intent element inheres in the (a) 29b, charged an act cannot be under Item Second, prohibition considering of 29b. Item “deliberate,” requires which that it be unless whole, nothing 29 as a about the con- Item specific it is undertaken with a discriminato- proscribes suggests duct that Item 29a (b) intent, ry undisputed and it is that he had government’s construction the term puts “[u]nder no such intent. As Newton “deliberate” in Item 29b would make that penalized action 29b] the must be [Item provision example, redundant. For Item 29a ‘deliberate intentional act of discrimina- containing “disseminating forbids literature penalty tion’.... should have been [The] might such slurs.” One [racial ethnic] imposed 29a instead of 29b under subsection impossible contend that it is to disseminate ... action not intentional [the] because inadvertently; argument, such literature 2 Regarding racial discrimination.” accepted, if would render Item 29b redun- him, Force’s decision to remove Newton con- severely gov- dant thus undermine the ought lightened tends that the AJ to have equation ernment’s of “deliberate” with “not view of Newton’s lack inadvertent.” But the contention is unavail- discriminatory intent and excellent service ing, imagine for it is not difficult to an act of
record. inadvertent dissemination. Consider employee brings magazines case where an
Analysis placement general reading work for area 29b, 29a, and, him, express Item unlike its unbeknownst one or more of proscribes only magazines patently discrimi these contains offensive terms “deliberate” conduct, Again, nation. contends that his act racist editorials or cartoons. This inadvertent, culpably certainly in was not “deliberate” because he while would constitute funny, charged to be not to be hostile or the dissemination of materi- tended environment, along thereby al into work toward Lewis or others violat- government responds prohibition racial lines. The of Item 29a. Federal patently agencies power racial nature of the have it well within their “the offensive act, steps prevent injuries combined with the took to seek to such inadvertent [Newton cross], clearly workplace [his] burn the reveal that ac environment. See Carosella Serv., Putting F.2d tions were deliberate.” it another United States Postal 816 643 actually quite correctly, proposed 2. Newton also contends that he was that the notice of re- 29b, charged Rights clearly charged VII of the Civil Act of moval Newton under Item under Title 2000e-2(a)(l), prevail creating § 42 U.S.C. not Title VII. Whether Lewis could environment,” arising "hostile work that "the the Air Force on a Title VII claim simply present is thus irrelevant [he] did not sufficient evidence that out of Newton’s conduct charge against can created a hostile work environment from the to whether the single government responds, sustained. incident.” The
599
(Fed.Cir.1987) (“An employer
required
is not
arbitrator
should have evaluated whether
disruption
Mr. Frazier’s conduct
to tolerate the
and inefficiencies
created a hostile or
perspective
abusive environment from
environment
caused
hostile
Instead,
being
the one
harassed.
clearly
appar
it is
wrongdoer
until the
has so
violated
ent that he viewed the situation from Mr.
prevail
victims are sure to
the law that the
perspective by
action.”).
introducing
Frazier’s
intent as
a Title VII
By
element of the offense.
so requiring,
agency’s
disciplining racially
An
interest
improperly
the arbitrator
borrowed the mens
when,
greater
all
conduct is
requirement
rea
from criminal law and inter
here,
than
the conduct is deliberate rather
jected
law.”);
it into sexual harassment
Bol
suggest
inadvertent. Newton does
Inc.,
den v. PRC
43 F.3d
551
ignorant
racially charged
he was
Cir.1994) (“[I]t must be shown that
...
cross; indeed,
meaning of a
such a
harassment was racial or stemmed from ra
fly directly
suggestion would
in the face of
animus.”)
added),
cial
(emphasis
cert. de
joke
his claim to have intended to
with
—nied,
-,
U.S.
116 S.Ct.
joked
same manner that Lewis
(1995);
L.Ed.2d 48
Brady,
Ellison v.
Moreover,
noted,
him.
as the
no reason-
AJ
(9th Cir.1991) (“Well-inten
F.2d
remotely
person
able
even
aware of our na-
compliments by
super
tioned
co-workers or
history
tion’s
could fail to know the racist
can
visors
form the basis of a sexual harass
*5
symbolizes.
terrorism that a
ment cause of action if a reasonable victim of
patently
this
Newton’s removal for
racial and
plaintiff
the same sex as the
would consider
act
Air
vindicates the
Force’s le-
sufficiently
pervasive
the comments
severe or
gitimate
maintaining
in
interest
an efficient
employment
to alter a condition of
and create
operation. Any injury
may
that Lewis
environment.”);
working
an abusive
Bundy
actually
not have
suffered is beside the
Jackson,
(D.C.Cir.1981)
934,
v.
641 F.2d
945
Newton,
point.
charge against
correctly
(“Sexual stereotyping through discriminatory
understood,
proved beyond
has been
doubt.
requirements may
benign
dress
be
in intent
yet
VII.”);
...
it
Vaughn
violates Title
v.
Finally, although
reviewing
we are not
Co.,
(5th
922,
Pool
683 F.2d
925 n. 3
claim,
noting
Offshore
Title VII
it is worth
that our
Cir.1982) (“The
legal analysis
district court’s
construction of the word “deliberate” in Item
improperly focused on the intent of those
fully
29b is
consistent with the
work
“hostile
specifical
who created the environment. We
EEOC,
Rogers
In
environment” ease law.
v.
ly
Rogers
necessary
noted in
that it is not
the earliest circuit case to construe Title VII
challenging
show intent
case
a discrimi
claims,
covering
recognized
such
the court
environment.”).
natory working
Thus, where
proscriptions
that “the thrust of Title VII’s
employees
reasonably perceive
can
con
consequences
aimed at the
of an
effects
abusive,
question
duct in
to be hostile or
employment practice
employ
and not at the
specific discriminatory
actor’s lack of
intent
234,
er’s motivation.”
454 F.2d
239
prevent
does not
his or her deliberate con
Cir.1971)
denied,
added),
(emphasis
cert.
406
being
duct from
actionable under Title VII.
957,
U.S.
92
32
S.Ct.
L.Ed.2d 343
(1972).
Supreme
recently
Court
reaf
As for the
Force’s choice of
poisons
firmed
conduct
the work
case,
penalty in the instant
it is well-estab
place
long
is actionable “so
as the environ
appeal,
lished
on
the AJ’s “affirmance of
reasonably
perceived,
ment would
and is
agency’s
choice of
will not be
perceived,
abusive,”
hostile
Harris v.
inappro
so
disturbed unless
harsh
Inc.,
17, -,
Sys.,
510 U.S.
114 priate
agency’s discretionary
as to exceed the
Forklift
(1993),
Carosella,
S.Ct.
Air Force’s concerns over the severe nature
years
cluding
six
as a
had an
offense,
employees
its
effect
record. He had been
unblemished
Tinker,
posed
and the threat
to Tinker’s
training about the evils of discrimination in
ability
operate, in
reputation, and thus its
slightest
There is not the
community
entirely
surrounding
are
le-
prior racially-discriminatory
taint of
that, in
gitimate.
cannot conclude
We
part.
help
cannot
wonder if
One
case,
“ap-
circumstances of this
the removal
suddenly,
explanation, ap-
without
pears totally unwarranted.” Id.
employee
peared
front of a Black
with a
foregoing
deci-
For the
the AJ’s
would the
Force have
sion is
simply
thought,
fired him without further
might
they have undertaken to determine
Affirmed.
having
whether he was
some kind of mental
R,
breakdown,
Judge, dissenting.
explana-
Circuit
or to seek some other
PLAGE
tion for such aberrant behavior.
respectfully
removal of
dissent. The
employment
explanation
from federal
cannot
Here there is an obvious
charge brought.
permitted
be sustained under
his behavior. Newton
himself to
Newton, Caucasian,
improper relationship
in the
be in an
with an em-
*6
unit,
engine repair
permitted
ployee,
misguided
partici-
in a
aircraft
an
and
effort to
Lewis,
African-American,
relationship
highly
employee,
pate
an
to
in that
he acted in a
jok-
engage
highly inappropriate
inappropriate
person
him in
a
manner for a
su-
joking relationship
pervisory position.
response by
ing relationship. The
The obvious
(but
by
by
not
included the use
Lewis
the
Force to this situation would have
Newton)
racially charged language.
discipline
unacceptable
of
to
a
and
Lewis would address Newton
behavior toward
to disci-
fucker,”
hillbilly
pline
effectively super-
as a “white
mother
and as
Newton for failure to
fucker,”
vise, perhaps removing
supervi-
a “Klan mother
and would com-
him from his
others,
openly
sory position.1
ment
with
reference
Newton,
that “I’ll
hill-
that
bet
AJ, though recognizing
the circum-
billy
running
mother fucker is
the KKK.”
in which this
of
sticks
stances
the
kind,
respond in
Newton would not
occurred,
upheld
nevertheless
the dismissal
appropriate
the same time did not take
ac-
charge brought by
of Newton on the
the Air
discipline
improper
tion
Lewis for his
engaging
of
in
dis-
indeed,
supervisor;
behavior toward his
crimination under
Item 29b of the Air
whatever
Newton seemed to con-
Disciplinary
Force’s “Guide to
Actions.” The
encourage
improper
if
Lewis’
done
not
be-
Item,
29a,
preceding
Item
describes various
havior.
discriminatory
proscribed
kinds of
by
employee, including
happened.
The inevitable
Consistent with
sexual harassment
joking relationship,
played
making
pen-
racial or
and
ethnic slurs. The
alty
graphically,
provided
reprimand
and
for a first offense
role of “Klan mother fucker”
5-day
pulled
suspension.
implicitly
in front of Lewis
Item 29b
the stunt of
supervisor]
reassigned
changed
interesting
to a
1. It is
to note that
the Air Force
should be
reviewing
Guidelines admonish the
officer to
grade
lower
to a
of a different charac-
consider, even in the case of 'deliberate' discrim-
Item
NOTE.
ter."
29b
by supervisor,
offending
a
[the
ination
"whether
Webster’s,
29a,
1990).
incorporates
proscriptions
and
ed.
likewise defines
if
applies
the discrimination was “deliberate.”
by
“deliberate” as “characterized
resulting
Then the
include removal.
from slow
thorough
careful
calculation and
consequences:
consideration
effects and
puzzle.
language
of 29b creates a
If
rash,
hasty,
thoughtless.”
Webster’s
requires
29b
“deliberate”
Dictionary,
Third Int’l
Unabridged 596
discriminatory
pro-
what kind of
conduct is
inappropriate
However
the various
Presumably
scribed
29a?
it must be non-
interactions between Lewis and Newton
is,
accidental or unintentional
were, and
however salted with
conduct. But
in acci-
how does one
charged language, the facts leave no doubt
dental
conduct? The Govern-
engaged
ment,
neither was
acquiescence,
“deliberate ra-
with the AJ’s
solves this
cial discrimination” toward
by arguing
verbal dilemma
the other. To
that “deliberate”
misapply
majori-
prohibition against
panel
means “not inadvertent.” The
racial dis-
Indeed,
ty
sees no error in that construct.
crimination in
to a case involv-
prove
point,
panel majority hypothe-
in supervisory authority,
breakdown
employee
brings
sizes the case of an
who
but in which no racial discrimination as such
magazine
magazine,
involved,
into
importance
is to demean the
employee
unbeknownst to the
who
prohibition, just
describing
non-com-
material, perhaps
read
contains offensive
parable events as a
denigrates
“holocaust”
employee,
an ethnic slur. The
we are ad-
from
meaning
significance
of that
vised,
thereby
prohibition
violates the
term.
Item 29a.
Nor is the
here that of a violation
accept
proposition.
cannot
I do not
VII,
concept
of Title
with its
of a hostile
believe that is what
Force Guidelines
work environment. Whether
say,
if
are intended to
I do not
matter,
successfully
Lewis for that
could be
possibly
upheld.
believe this could
Under
prosecuted for a violation of that Act is not
law,
reading
the mail clerk who
before us.
Pentagon
works
and delivers to a
opinion
inAJ
made clear what was
building, along
subscriber’s office
really at
stake
this case. The Air Force
mail,
copy
proverbial plain
the other
in the
sorely
embarrassed
the media atten-
wrapper
magazine containing
brown
event,
tion
to this
and decided that
story using explicit
language,
“street”
could
*7
removal
of Newton
on discrimination
delay.2
be fired without
This
defies
grounds
placate
would
its critics. As the AJ
sense,
profound
common
but raises
most
it,
put
public’s perception
“while the
of the
questions of Due Process and First Amend-
one factor to be consid-
e.g.
California,
ment liberties. See
Cohen v.
determining
propriety
ered in
403 U.S.
91 S.Ct.
apply the law super- may have behaved as a poorly Newton visor, facts of the case he in an act of “deliberate
did not Lewis, by any discrimination” under- contrary meaning of that term. stood Board, Agency, upholding evidence the record is without substantial contrary to law. I would support and is of the Board. the decision reverse KRAFT, INC., Plaintiff-Appellant, STATES, The UNITED Defendant/Cross-
Appellant. 94-5163, Nos. 95-5007. Appeals, United States Court Federal Circuit. 5, 1996.