Iowa Civil Rights Commission Administrative Ruling: Tillman Facts 3

II. RACIAL HARASSMENT:

A. Complainant Is A Member of A Protected Class:

24. Complainant Tillman is a Black person and is, therefore, a member of a class protected from race discrimination by the Iowa Civil Rights Act. This fact is admitted by Respondents Monfort. See Finding of Fact No. 3. (Respondents Monfort's Post-Hearing Reply Brief at p.3, n.3; p. 29 n.28). (It should be noted that Respondents Monfort stipulated that witnesses Complainant Tillman, Caroline Tillman, Eugene Phillips, and Tracey Harrington are all African-American.) (Respondents Monfort's Post-Hearing Reply Brief at p.3, n.3).

B. Complainant Tillman Was Subjected to Unwelcome Racial Harassment, I.e. Adverse Conduct Regarded by Him As Unwelcome and Reasonably Considered to Be Undesirable or Offensive:

25. Complainant Tillman was the subject of repeated acts of verbal racial harassment, and one act of physical harassment, perpetrated by his coworkers, including but not limited to Respondent Bret Goken.

26. Complainant Tillman had no problems with his coworkers until he got on the main break area. (Tr. at 126). At that point, while he was hooking sides, he would repeatedly be called racist names by the loin pullers, including "coon, boy, nigger." One of these individuals was described as a blond white male, whose name Tillman apparently does not know, who referred to Tillman as a "coon". Another employee, referred to by Complainant Tillman as a "letout guy," was named Henry Mentel. (Apparently one of Mentel's functions was to "let out" and temporarily relieve line employees who needed to take a restroom break). Mentel was also a union steward. (Tr. at 127-30, 232, 233, 500-01). Mr. Mentel came up to Complainant Tillman, threw a side of pork at him and stated, "Hook the fucking side right, boy." (Tr. at 128). Before Mentel made this remark, there had been no prior racist statements by him or the loin pullers, but there had been such comments by other employees. (Tr. at 129-30, 370).

27. Eugene Phillips, a Black employee, also overheard Mentel and other loin pullers yell at Complainant Tillman and another Black employee who hooked sides to "hook the fucking sides, boy" or use other racially derogatory language toward them. (Tr. at 14-15, 31, 51, 236, 274). (Loin pullers often yell at side hookers when the loin is not hooked properly as this makes their job more difficult). (Tr. at 31). Phillips heard the "hook the fucking sides, boy" language directed toward Complainant Tillman on two or three occasions, starting three or four months after Tillman was hired. (Tr. at 15, 30). He heard Henry Mentel direct racially derogatory language to Tillman on two occasions. (Tr. at 31). Phillips never heard the term "boy" used by the loin pullers toward anyone except Black employees. (Tr. at 15).

28. It is a matter of common knowledge, and certainly a matter within the specialized knowledge of this agency, that (1) the word "boy" has long been applied to adult Black males as a racial epithet; and (2) the racist implication of the use of this epithet is that Black males are incapable of acting as adults, i.e. as men, and therefore need not be addressed as men. Official notice is taken of these two enumerated facts. Fairness to the parties does not require that they be given the opportunity to contest these facts.

29. Complainant Tillman heard such name calling directed toward him on at least four days out of a typical five day work week. These incidents continued throughout the remainder of his employment. (Tr. at 130, 145, 341-42). Complainant Tillman was the recipient of racial slurs in other locations than the line. For example, another white employee named Purdy called Tillman a "nigger" in the locker room. He slammed Purdy against a locker and told him not to call him that again. (Tr. at 131, 234-36). Complainant Tillman had never experienced such treatment before in any packing plant or other employer where he worked. (Tr. at 131).

30. After Henry Mentel threw the side of pork at him and called him "boy", he turned away from the Complainant. Complainant Tillman prepared to throw it at the back of Mentel's head. Before he could complete this action, supervisor Dean Welton saw there was some kind of trouble and brought Tillman and Mentel into the cut floor office. (The evidence does not establish that Welton was aware either that Mentel had thrown the side of pork at Tillman or that Tillman was preparing to throw it back at Mentel). At that time, Complainant Tillman informed management of the racial slurs directed at him by Mentel and other coworkers. (R. EX. M; Tr. at 128-29, 370, 577-78, 604-06, 620). On the same day, after this meeting ended, Henry Mentel refused to respond to Complainant Tillman's signal to relieve him so he could take a restroom break. Tillman is certain Mentel understood the signal. This happened again on several occasions, so Tillman had to leave the line because Mentel would not respond. (Tr. at 232-33). The name calling by Mentel and other employees also continued after this meeting. (Tr. at 129).

31. David Moravec, a white employee, was a janitor at Monfort from January through May 1990. (Tr. at 64). He heard other employees refer to Tillman behind his back by racially derogatory names. (Tr. at 69). On one occasion, while Moravec observed Tillman hooking sides, he heard an employee yell "nigger." (Tr. at 70). This testimony is credited because it is consistent with other testimony. See Findings of Fact Nos. 26, 29, 32.

32. To the extent that his testimony is consistent with that of Complainant Tillman and David Moravec, Ronald Allen's testimony that Complainant Tillman was referred to by racially derogatory names such as "nigger," "black SOB," and "black F SOB" is credited. (Tr. at 287-88). It is also credited to the extent it confirms that there was at least one occasion in the locker room where there was trouble between Complainant Tillman and another employee because of racial name calling. (Tr. at 287). See Finding of Fact No. 29. Neither Tillman's nor any other witness's testimony verifies Allen's story that there were several occasions where it was necessary to calm Tillman down and encourage the harassers to retreat in order to avoid fisticuffs in the locker room. (Tr. at 287-88). Therefore, that testimony is not credited. See Finding of Fact No. 116.

33. On May 23, 1990, Respondent Bret Goken was working on the butt line when something on that line broke. Respondent Goken signaled Complainant Tillman to shut off the main line. Tillman refused because "Charlie," apparently Charlie Freese, then general foreman, had previously "jumped us for shutting the break down" on a prior occasion. (R. EX. M, N; Tr. at 138-39). See Finding of Fact No. 20.

34 Respondent Goken responded by giving Complainant Tillman "the finger" and repeatedly yelling "nigger." at him. (Tr. at 140, 241, 500-01, 543, 552). Tillman was sufficiently angered by this action that he walked over to Goken and informed him that if he called Tillman a racially offensive name again, he would be digging his head out of a table. Goken was quiet the rest of that day. (Tr. at 141, 241-42, 558-59, 560).

35. Respondent Goken also made loud racist comments on other occasions at work when there was an audience of coworkers for him to play to. These included comments made to Complainant Tillman. Goken would take care, however, to ensure these comments were not made when they could be heard by supervisors. (Tr. at 77-78, 89).

36. On May 24, 1990, Complainant Tillman and Respondent Goken confronted each other while in line at the Monfort cafeteria. (R. EX. M, N, Tr. at 142-43, 240, 243). Goken was staring at Tillman. (Tr. at 143, 245). Complainant Tillman either told Goken, "Get the fuck out of my face" or "Who you looking at?". Respondent Goken replied either "fuck you, nigger" or "you, you fucking nigger." (Notice of Hearing; Tr. at 143, 245, 683-84). Complainant Tillman then grabbed Respondent Goken by the hair and "started slamming his head across the table" while telling him, "I'm going to take that nigger word out of your vocabulary." (Tr. at 143). It is undisputed that supervisors Dean Welton and Michael Slifer broke up this fight and escorted Tillman and Goken to Bary Carl's office.

37. Respondents Monfort admit that, "[b]ecause Monfort's 'after-the-fact-of-the-cafeteria-incident' investigation confirmed them, it is not disputed that co-worker Goken on May 23 used offensive racial epithets toward Mr. Tillman while the two were both engaged in production work, or that co-worker Goken on May 24 uttered a racial epithet towards Mr. Tillman while both were in the cafeteria." (Respondents' Monfort's Posthearing Brief at 29). Monfort's investigation also concluded that, "everything happened the way the two employees concerned said it did. Goken had antagonized Tillman to the point that Tillman reacted physically." (R. EX. M). As a result of his investigation, Monfort personnel manager Bary Carl concluded that Respondent Goken had probably racially harassed or antagonized Complainant Tillman. (Tr. at 730).

38. The union's investigation of the cafeteria incident also confirmed that Respondent Goken had used racial epithets, such as "nigger", to refer to Complainant Tillman. (Tr. at 552). The union concluded that, but for the racial slurs and animosity directed toward Complainant Tillman by Respondent Goken, there would have been no fight in the cafeteria.(Tr. at 559). At the fourth step grievance meeting concerning Tillman's discharge, union and management were agreed that Goken had used racial slurs toward Tillman at the time of the fight. (Tr. at 682, 683-84).

39. It should be noted that there were also racist graffiti, such as "nigger," "wetback," or "KKK," as well as nonracist graffiti written on the walls and bathroom stalls in the locker room used by non-management employees. (Tr. at 17-18, 42, 95-96, 103-04, 112, 510-11, 532, 534, 565-66). There is no evidence, however, of graffiti specifically directed at Tillman or that he read, complained about, or was affected by the graffiti that was there.

40. Complainant Tillman found the acts of verbal racial harassment, and the physical act of having the side of pork thrown at him while being referred to as "boy," to be offensive acts which angered and upset him. (Tr. at 127-28, 131-32, 141, 145, 171). The work environment made him feel "like dirt." (Tr. at 132). Complainant Tillman's reaction to this harassment makes it clear it was unwelcome. See Findings of Fact Nos. 29-30, 34, 36. Any reasonable person would also find such unwelcome verbal and physical conduct to be hostile and abusive.

C. The Harassment of Complainant Tillman Was Based on His Race:

41. The offensive verbal conduct directed at Complainant Tillman by Respondent Bret Goken and other coworkers was clearly based upon his race. The use of such racially derogatory language as "boy", "nigger," and "coon" towards Tillman is obvious race based harassment. In addition, the act of throwing a side of pork at Tillman while referring to him as "boy" is race based harassment. See Findings of Fact Nos. 26, 30.

D. The Harassment Affected A Term, Condition, Or Privilege of Complainant Tillman's Employment:

42. The preponderance of the evidence demonstrates that the harassment adversely affected Complainant Tillman's working environment, which is a condition of his employment. See Conclusion of Law No. 42. The totality of circumstances shown in the evidence, including the frequency of the conduct, its severity, its humiliating nature, and its impact on Complainant's work performance demonstrate the hostile and abusive nature of his working environment. See Findings of Fact Nos. 43-46.

1. Frequency of the Harassment:

43. Complainant Tillman's working environment could and was reasonably perceived to be a hostile or abusive environment due to the pervasive racial harassment endured by Complainant Tillman. As previously noted, the verbal harassment was directed toward Tillman on at least four days out of a typical five day work week. This harassment occurred both on the line and in the locker room. See Finding of Fact No. 29. At times, the harassment by coworkers would include repetitious use of racist language, such as the use of the word "nigger" by Respondent Bret Goken toward the Complainant. See Finding of Fact No. 34. These epithets were frequent and not sporadic comments. Thus the frequency of these acts supports the conclusion that they resulted in a hostile or abusive working environment. See Findings of Fact Nos. 26-38, 40.

2. Severity and Physically Threatening or Humiliating Nature of the Harassment:

44. The racially derogatory language directed toward Complainant Tillman by Respondent Bret Goken and others was neither accidental nor part of casual conversation. The regular, frequent, and repetitive use of such words as "nigger," "coon," and "boy" toward a Black employee by coworkers is a sufficiently severe and humiliating activity to create a racially hostile or abusive working environment for that employee. See Findings of Fact Nos. 26-38, 40. When an object, such as a side of pork, is thrown at a Black employee by a coworker while calling him "boy," the act of throwing the object may also be seen as physically threatening. See Findings of Fact Nos. 26, 30, 41. The combination of repeated verbal harassment by coworkers and a one time incident of physical harassment by a coworker is sufficiently severe to show an abusive and physically threatening or humiliating work environment.

3. Interference With Work Performance Caused By the Harassment:

45. There was some interference with Complainant's work performance caused by the harassment. For example, when Henry Mentel referred to Complainant as "boy." while telling him to hook the side correctly, Mentel nearly precipitated a fight. See Findings of Fact No. 30. This type of interaction between coworkers interferes with job performance. The same could be said for Bret Goken's reference to the Complainant as "nigger" when he failed to shut down the line. See Findings of Fact No. 34. On that occasion, Complainant Tillman left his job function of trimming hams while he went to tell Goken to stop that language. Since the line continued to function while he was gone, he told a coworker to let the hams continue down the line untrimmed while he talked to Goken. (Tr. at 142). Complainant's work performance was also made more difficult because he had to walk off the line because Mentel refused to relieve him when he took a break. See Finding of Fact No. 30. Of course, being angered or made to feel "like dirt" on the job can also make a job more difficult. The Complainant not only became angry enough to threaten Goken, but also angry enough to slam Goken's head into the table when Goken again referred to him as "nigger." See Findings of Fact Nos. 34, 36, 40. The reference to himself as a "boy" also led Complainant Tillman to distrust the union to such a degree that he tried to leave the union and refused having a steward present when warned about an unexcused absence. (R. EX. BP; Tr. at 259-261). The interference with job performance here was severe enough to support the conclusion that the harassment created an abusive or hostile working environment.

46. Given the frequency of the acts of racial harassment, their severity, their humiliating nature, their interference with job performance and the physically threatening nature of one of these acts, these acts affected a condition of Tillman's employment by creating a racially hostile and abusive working environment for him.

E. The Commission Has Established That Respondent Bret Goken Engaged In Racial Harassment of Complainant Tillman:

46A. From the above facts, it is clear that the Commission has established all the elements necessary to show that Respondent Bret Goken engaged in racial harassment of Complainant Tillman. These elements include:

a. that Complainant Tillman is Black and is therefore a member of a class protected against race discrimination; See Finding of Fact No. 24.

b. that he was subjected to harassment by Respondent Goken and other employees of Respondents Monfort of Colorado, Inc. and Con Agra. This was adverse conduct which he regarded as uninvited and offensive and which any reasonable person would regard as offensive; See Findings of Fact Nos. 25-40.

c. that this harassment was based upon his race, i.e. because he is Black; See Finding of Fact No. 41.

d. that this harassment created a hostile or abusive work environment. See Findings of Fact Nos. 42-46.

F. With the Exception of That Harassment Which Complainant Tillman Initially Informed Them About With Respect to Acts Committed By Henry Mentel and Other Coworkers, Respondents Monfort Did Not Know Nor Should They Have Known of Racial Harassment Directed Toward Complainant Tillman Until After the Cafeteria Incident With Respondent Bret Goken.

1. With the Exception of the Harassment Initially Committed By Henry Mentel and Other Coworkers, Respondents Monfort Did Not Know of Racial Harassment Directed Toward Complainant Tillman Until After the Cafeteria Incident With Respondent Bret Goken:

47. As previously noted, Complainant Tillman informed Monfort management of the racial slurs initially directed at him by Henry Mentel and other coworkers. See Finding of Fact No. 30. That fact is confirmed not only by Tillman's testimony, but also by the testimony of supervisor Dean Welton; general foreman Charlie Freese; union steward Jerry Rutherford, and by the notes and testimony of personnel manager Bary Carl. (R. EX. M; Tr. at 128-29, 370, 541-42, 577-78, 606, 620,725-26).

48. There is no evidence to support the proposition that Respondent's Monfort's management was aware of the continuing harassment of Complainant Tillman by Henry Mentel and other coworkers after Tillman complained to Respondents Monfort's management about them. There is also no evidence to support the proposition that Respondent's Monfort's management was aware of any other racial harassment of Complainant Tillman until the cafeteria incident on May 24, 1990. The preponderance of the evidence suggests that Monfort's management was not aware of any such harassment of Tillman. (R. EX. M; N; Tr. at 77-78, 89, 90, 141, 233, 235, 242-43, 258, 289, 318, 373, 390, 493, 495, 520, 521, 532, 577-78, 604-05, 610, 639, 724, 725-26). No supervisors were around when Respondent Goken used racist epithets toward Tillman. Complainant Tillman did not inform management of that conduct, or of other harassment after the initial harassment by Mentel and the loin pullers, until after the fight in the cafeteria. (R. EX. M; Tr. at 77-78, 89, 233-35, 242-43, 373, 390, 493, 495, 513-14, 520, 521, 610, 639, 724, 725-27). Even when a supervisor came over to Respondent Goken to fix the problem that led to Goken yelling at Tillman, Complainant Tillman did not report Goken's conduct to that supervisor. (Tr. at 243).

2. Respondents Monfort Were Not In A Position Where They Should Have Known of Continuing Racial Harassment of Complainant Tillman During the Period From the Time He Reported the Harassment by Mentel and Other Coworkers to the Time of the Cafeteria Incident:

49. The preponderance of the evidence does not support the position that Respondents Monfort should have known of the continuing racial harassment of Complainant Tillman during the period after he reported the harassment by Henry Mentel and other coworkers and before the cafeteria incident. There are five reasons why this is so.

50. First, the cut floor at the Monfort Pork Plant is a noisy working environment. Production workers are required to wear ear plugs in or ear muffs over both ears to protect them from the noise. Supervisors wear an ear plug in the left ear and a radio ear plug and an ear muff in the right ear. Under these conditions, supervisors and employees must shout to make themselves heard up to 20 feet away. (CP. EX. 7; Tr. at 38, 50, 51, 57, 120, 483-86). Thus, things may be said, or even shouted, which are not necessarily overheard by a supervisor.

51. Second, at Monfort only supervisors wear blue hard hats so that they may be immediately recognized if an employee wishes to talk to one. (Production workers wear white hats; leadmen, red or orange hats; and union stewards, green hats). These blue hats, however, also make it easy for those who wish to engage in misconduct to do so only while they are not being observed by a supervisor. (CP. EX. 7; Tr. at 9-10, 77-78, 87-89, 295-96, 473-74, 483, 526, 629, 638, 651). This is possible because the supervisors are mobile and move throughout their area of supervision unless they are dealing with some particular problem such as briefly taking over an employee's function due to the employee's absence until the spell-out employee arrived to take it over. (Tr. at 35-36, 50, 479, 599, 802). Perhaps 40 minutes a day would also be spent in the supervisors office on the cut floor. (Tr. at 482). Complainant Tillman noted that he hardly ever even saw his supervisor. (Tr. at 261). Caroline Tillman saw hers two to three times a day. (Tr. at 399). Eugene Phillips noted that it might take a minute or so to get the attention of his supervisors because they were mobile. (Tr. at 50, 57-58). Under these circumstances, employees are even able to and do conceal fights from management when the fights occur at times when no supervisor is present in the immediate area. (Tr. at 94, 106, 502-06, 529, 583-84).

52. Third, the preponderance of the evidence does not demonstrate that acts of racial harassment of Blacks at the Monfort Pork Plant were so numerous that a reasonably observant supervisor, under the conditions described above, could not have failed to notice them. There is, in addition to the evidence of harassment of Complainant Tillman previously cited, credible evidence of only sporadic incidents of racial harassment. Although the incidents of harassment met the combined standards of pervasiveness and severity enough to prove a racially hostile environment for Complainant Tillman, it does not necessarily follow that they were pervasive enough to have provided constructive notice to Monfort. See Conclusion of Law No. 57.

53. This evidence includes the comments of Eugene Phillips and Caroline Tillman which indicate that they were treated far better than Complainant Tillman with respect to incidents of racial harassment. (Tr. at 52, 459, 464). Tracey Harrington, a Black employee whose deposition was entered into evidence, testified that she worked at Monfort for almost a year starting in August of 1989. During that time, she never heard racially derogatory remarks being made to her or to anyone else. (CP. EX. 7).

54. Thus, no one made racially derogatory comments toward Eugene Phillips during his four and one half years at Monfort, although he did hear certain racial comments directed towards Complainant Tillman and one other Black employee. He did not hear any comments toward Tillman until after Tillman had been employed three or four months. See Finding of Fact No. 27. (Phillips testified on different occasions both (a) that racially derogatory statements were not directed toward him and (b) that supervisor Dean Welton referred to him when making the statement to Moravec that "He'll learn quick, he's a good boy," which Phillips felt was a racially derogatory statement. Since (a) Welton denies ever having used the word "boy" to refer to African-American men, (b) Phillips had previously testified on deposition that no one ever made racially derogatory comments to him, (c) Phillips was a friend of the Tillmans and (d) Phillips had animosity toward Monfort due to the firing of Complainant Tillman, the only testimony which is credited on this issue is that wherein Phillips denies having been called such names). (Tr. at 16, 30, 40, 616). Phillips did not complain to either the union or management about any racial comments he may have heard. (Tr. at 16, 39-40)

55. Caroline Tillman was the complainant's sister. She worked at Monfort from August of 1989 until December of 1993. She testified that she would have continued to work at Monfort if she still had a reliable ride to work. (Tr. at 114, 393-94, 429-30, 459). The picnic line was her first assignment. After approximately six weeks there, she transferred to the giblet meat position. (Tr. at 396-97). She did not find her work environment to be racially hostile for the over four year period after the transfer. She worked by herself and basically only saw other people at break and lunch. (Tr. at 430, 459, 462-63).

57. She claimed that, during the six weeks she was on picnic line she repeatedly heard racial or ethnic slurs on the plant floor. However, with the exception of one incident, she could not identify any of the specifics of the alleged name calling, such as the names used, who said them, what their position was, or any other details whatsoever. (Tr. at 405, 407, 459). Since the victims of verbal racial harassment are usually able to identify with some detail more than one incident of harassment, it appears that particular testimony may be exaggerated to aid her brother.

58. Her testimony is credible to the extent it indicates that there was an incident where either a Jeff Davis (also referred to in the record as "Davison") or an individual named "Kent" called her a "Black bitch" or "nigger bitch" on one occasion. She seems to be confused as to who made this remark. During deposition, she testified that the only time she was ever called a racially derogatory name at Monfort was by a man named Kent. (Tr. at 441-42). At hearing, she testified "I have had some [comments] directed to me, but I can't tell you exactly what they said to me. Oh God, Jeff Davison called me--what did he call me? I don't know. It was black B or nigger B." (Tr. at 405). She testified that she did not report that incident to management, but did bring it to the attention of Complainant Tillman, Eugene Phillips and Vern Freese, a union steward. She testified that, after her brother, Phillips, and Freese talked to him, Davis ceased to bother her and became her friend. (Tr. at 405-07).

59. Caroline Tillman may have been confused because she had previously been called "scab" by Jeff Davis and had blood clots thrown on her clothes by him. She reported these incidents to Mike Slifer. She met individually with both Slifer and union steward Jeannie Tasler. They then met with Davis, but his behavior did not change. She again complained and general foreman Charlie Freese had her moved to the giblet position. While she understood that the "scab" epithet is normally applied to those who cross picket lines, she believed that it was applied to her because of her race as she had not crossed any picket lines. (Tr. at 401-05, 437-38, 440-41, 461-62). For reasons stated in the conclusions of law, the use of "code words," which are not explicitly racial, toward minority employees may be racially motivated. See Conclusion of Law No. 58. Nonetheless, there is no evidence in the record that she told Monfort management that she believed either of these acts were racially motivated. (Tr. at 489). Nor is there evidence that "scab" was used at the Monfort plant as a code word which was intended to racially demean Blacks or that throwing blood clots is used as a form of racial harassment against Blacks. .

60. It appears more likely, in accordance with her deposition testimony, that Caroline Tillman was called "nigger bitch" on one occasion by Kent Goldsberry. That incident was reported to the union steward Vern Freese. Management. learned of it from either Caroline Tillman or from Vern Freese. (Tr. at 441-42, 608).

61. Racial graffiti would appear in the production workers locker room along with graffiti on a variety of other topics. See Finding of Fact No. 39. Some of the racial graffiti were seen by supervisor Michael Slifer. (Tr. at 510-11). Some of it was also reported to supervisor Verne Cosselman. (Tr. at 533). On its posthearing brief, Respondents Monfort admit that there were from time to time, graffiti in the production workers restrooms. (Respondents Monfort's Posthearing Brief at 4).

62. Another incident of harassment was alleged to have occurred after the altercation between Respondent Goken and Complainant Tillman was broken up by supervisors Dean Welton and Mike Slifer. Both Tillman and Goken were then taken to the office of personnel manager Bary Carl. Present at the office were Complainant Tillman, Respondent Goken, Bary Carl, Dean Welton, Mike Slifer and Jerry Rutherford, union steward. (R. EX. M, N; Tr. at 144-45, 415, 498-99, 525, 539, 542). Caroline Tillman was also present for 10-12 minutes. (Tr. at 417).

63. Complainant Tillman and his sister, Caroline Tillman, testified that, in the personnel (Bary Carl's) office, Respondent Goken began repeatedly calling him "nigger" and other racially derogatory language. (Tr. at 144-45; 247-249, 343, 345, 415, 417, 447). Complainant Tillman asserted that this included Goken yelling "that fucking nigger did this, that fucking nigger did that." in response to Bary Carl asking what happened. (Tr. at 145). Caroline Tillman, however, testified that Bret was not answering any questions asked by Bary Carl because no one asked any questions. (Tr. at 416).

64. Both of the Tillmans testified that Goken was permitted to use this language without any attempt being made by any member of management to control it. (Tr. at 249, 345, 416, 420-21, 447-49). Complainant Tillman also testified in deposition, however, that he was not thinking too straight at this meeting. (Tr. at 373-74). Personnel manager Bary Carl denied that Goken used racial slurs in his office and would have stopped it if he had. (Tr. at 727-28). Supervisor Mike Slifer never heard Goken utter any racial slur to Complainant Tillman or any other employee. With respect to the meeting after the cafeteria fight, he does not remember any racial slurs being stated by Goken on that occasion. (Tr. at 514, 520). Supervisor Dean Welton denied that Goken used racial slurs in this meeting. (Tr. at 614). Union steward Jerry Rutherford cannot recall Goken ever using such language during this meeting. (Tr. at 541, 556, ) Failure to stop the use of racial epithets by Goken would be inconsistent with Respondents Monfort's policy, and, of far greater importance, its past practice, of prohibiting racial harassment, including but not limited to the use of racial slurs. See Findings of Fact Nos. 22A, 22B, 67A-79, 84. It is more likely than not that Respondent's management would have stopped Goken. Therefore, the Tillmans's testimony on this issue is not credited.

65. On direct examination, Complainant Tillman also testified that, at this meeting in Bary Carl's office,

Bary Carl stated "I don't know why the word "boy" offends you people." Tillman further testified he did not respond to this statement, but just shook his head and walked out. (Tr. at 145-46). On deposition, Complainant Tillman had previously given a different story. He stated that after Bary Carl made this statement, he did respond to it by explaining the word "boy" offended him "because I ain't a boy, I am a grown man." (Tr. at 344-45). Bary Carl denies making this statement. (Tr. at 727). If this statement had been made by Carl, it might have been asked in order to elicit information on why the word "boy" was offensive to Blacks and not as a racially derogatory statement. Given Carl's denial and the past practice and policies implemented by Respondents Monfort with respect to racial harassment, it is more likely than not that the statement was not made or was not intended as a racially derogatory statement if made.

66. Fourth, Respondents Monfort failure to learn of racial harassment did not come about because they failed to communicate their anti-harassment policy and methods for grieving acts of harassment to the employees. New employees are informed at orientation that, if they have a problem with another employee, they should bring it to the attention of a supervisor or union steward. (CP. EX. 7; R. EX. AB; Tr. at 32-33, 62-63, 83, 395, 436, 799). Complainant Tillman was told this. (Tr. at 119-20, 229). They are also provided with an employee handbook which indicates that racial harassment is prohibited. (R. EX. AB; Tr. at 27-28, 395, 709). See Finding of Fact No. 22A. Race discrimination is specifically prohibited by the bargaining agreement. Employees can grieve race discrimination under the bargaining agreement. (JOINT EX. 1). Federal anti-discrimination law and Monfort's anti-harassment policy are also posted in the plant. (R. EX. AB; Tr. at 43-44, 475, 713-15, 771-72).

67. Fifth, it has already been noted that, with the exception of complaining about the remarks made by Henry Mentel and other coworkers after being called to the office because he was about to strike Mentel with a side of pork, Tillman made no complaints about harassment prior to the cafeteria incident. See Finding of Fact No. 30, 48. The evidence demonstrates that there were few other complaints made to Monfort management about racial harassment at the Monfort Pork Plant. See Findings of Fact Nos. 54, 58-60.

G. The Commission Has Not Proven That Respondents Monfort Failed to Take Prompt and Appropriate Remedial Action With Respect to Those Incidents of Harassment of Complainant Tillman Which It Knew About:

67A. The Commission has failed to prove that Respondents Monfort failed to take prompt and appropriate remedial action with respect to those incidents of harassment of Complainant Tillman about which it knew.

1. The Evidence In the Record Does Not Establish That Respondents Monfort Failed to Take Prompt and Appropriate Corrective Action When They Were Informed of the Harassment of Complainant Tillman By Henry Mentel and Others:

68. The first and only incidents of harassment of Complainant Tillman of which Respondents Monfort were aware prior to the cafeteria incident were those that Complainant Tillman had informed them of, i.e. the name-calling by Mentel and other loin pullers, whose identity is not reflected in the record. See Finding of Fact No. 30, 48, 67.

69. On that occasion, general foreman Charlie Freese, supervisors Dean Welton and Byron Coleman met with union steward Vern Freese, Complainant Tillman and Henry Mentel. (Tr. at 128, 542, 577, 605-06). It is not clear in the record whether or not general foreman Charlie Freese was also present. Complainant Tillman indicated he was. Freese's testimony indicates, however, only that the meeting was reported to him. (Tr. at 128, 577-78, 587). Byron Coleman does not remember the meeting, although he does recall that there was an incident involving Tillman and Mentel. (Tr. at 637-38).

70. At that meeting, Byron Coleman informed Tillman and Mentel that he would keep an eye out for name calling. He indicated that, if he caught anyone calling Tillman a name, he was going to issue discipline up to and including discharge. After hearing both sides of the story, Dean Welton also stated that type of behavior would not be tolerated and it was not to happen anymore. Mentel was also specifically told by union steward Vern Freese that name calling was not going to be tolerated. (Tr. at 129, 179, 606, 638). Given the gravity of the harm done by such name calling, the nature of the harassment (i.e. that, as far as the employer knew, it was limited to name calling), and the information available to the employer, this was prompt and appropriate remedial action.

71. Complainant Tillman was then asked to leave the meeting by the union steward, Vern Freese, so he and the managers could talk alone with Henry Mentel. (Tr. at 129). The record does not reflect what else was said to Mentel after Tillman left.

72. In his testimony, Complainant Tillman emphasized that he saw Henry Mentel walk out of the meeting "smiling." (Tr. at 131, 233, 392). Tillman also testified, however, that Mentel might have been smiling just to annoy him. (Tr. at 233-34). It would be pure speculation to assume that the fact, that Mentel left the office "smiling," meant that the supervisors and union steward had reversed their position after Tillman left and indicated they approved of his actions. There are any number of explanations which might account for Mentel smiling after he left the office, including the possibility that he was just not intelligent enough to realize the seriousness of the situation.

2. The Credible Evidence Indicates That the Policy and Practice of Respondents Monfort Was to Take Prompt and Appropriate Remedial Action To Halt Harassment When They Knew of It.

73. The suggestion that Monfort management would either express approval or renounce their prior disapproval of Mentel's harassment of Complainant Tillman is contradicted by both their policy against racial harassment and their past practices with respect to racial harassment. See Finding of Fact No. 22A. These past practices include investigating harassment complaints, warning harassers, and suspending or discharging those who are known to continue to harass. (Tr. at 85-86, 98-100, 129, 288-89, 495-96, 501, 609-610, 689-90, 715-19, 799-800).

74. At times, these practices also include requiring the harasser to apologize or withdraw his statement to the victim or having the parties agree to a resolution of the situation. (Tr. at 288, 439, 608-10, 619-20, 717-18). This is not to suggest that such apologies or voluntary resolutions would be sufficient without at least an oral warning of further discipline for future harassment. See Conclusion of Law No.65. There is also evidence to suggest that formal disciplinary action such as written warnings or harsher discipline would not be implemented on the first instance of verbal harassment. (Tr. at 619-21, 623-24). The greater weight of the evidence, however, shows that the usual practice was to give harassers oral warnings of future discipline in the event of further acts of harassment. (Tr. at 85-86, 129, 288, 609, 689, 799-800).

75. For example, when supervisor Dean Welton was informed that Caroline Tillman was called "nigger bitch" by Kent Goldsberry, he held a meeting with Caroline Tillman, Kent Goldsberry and union steward Vern Freese. (Tr. at 438-440, 608). See Finding of Fact No. 60. At that time Goldsberry was specifically warned by Welton that racial harassment was not tolerated and he was to end it or he would be disciplined further. (Tr. at 608-09). Ms. Tillman acknowledged that Goldsberry apologized and "then we became friends." (Tr. at 439). There were no more such problems with Mr. Goldsberry. (Tr. at 439-440, 605).

76. David Moravec was also warned after a sexual harassment complaint was made against him for calling a woman a "f'ing scab" for taking his job during a previous strike. She complained directly to Bary Carl. This resulted in a meeting involving him, the female who complained, Bary Carl, and a third person, Rick Blackford. While the exact warning given Moravec is not in the record, he described the meeting as a "humdinger" which persuaded him to keep his mouth shut. (Tr. at 98-100).

77. In another instance, a Black man was not willing to apologize to a Black woman whom he called a racial name. He was not willing to recant and he was terminated. (Tr. at 718).

78. In another instance, John Geisinger, a white male, was involved in two separate situations. (Tr. at 718, 774-75). In the first one, an Hispanic employee pushed Geisinger off a step. This incident was a racially motivated altercation and recorded as such in Geisinger's personnel file. (Tr. at 676-77, 776-77). Both Geisinger and the Hispanic employee were given reprimands. (Tr. at 718-19). Pushing and shoving, were, at that time, viewed as horseplay and not fighting. (R. EX. AB; Tr. at 775-76).

79. In the second situation, Geisinger got into an argument with Tommy Mitchell, a Black employee, where Geisinger used racial slurs. (Tr. at 719, 775). This led to a lot of pushing and shoving by both Geisinger and Mitchell. Apparently each had taken a swing at the other and connected. (Tr. at 775). According to his personnel file, Geisinger was discharged for fighting. on company property. (Tr. at 776). Mitchell, however, was given a warning for horseplay. (Tr. at 775-76). Geisinger received harsher discipline because his disciplinary record showed that he had previously had been subjected to discipline for the racially motivated incident concerning the Hispanic employee. (Tr. at 776-77).

80. A flaw in Respondents Monfort's disciplinary system, as it existed at the time, was the failure to record in the harasser's personnel file instances where verbal warnings against harassment were given by supervisors after meetings in the cut floor office or other locations where Bary Carl was not present. Mr. Carl would then have no record showing that a repeat offender had previously engaged in harassment. (Tr. at 776-77). There is a risk that an employee could have repeatedly engaged in acts of harassment while receiving no discipline beyond repeated verbal warnings. Such repeated warnings would not be sufficient to deter future acts of harassment. See Conclusion of Law No. 61. There is no evidence, however, which indicates that this affected the situation with Complainant Tillman. Nor does this flaw demonstrate that Respondents Monfort actually failed to take appropriate action when they were aware of harassment.

81. Another flaw in the methods used by Respondents Monfort to correct racial harassment was its somewhat slow response in removing racist graffiti. Such graffiti would appear despite its posted policy against any graffiti. (Tr. at 314, 486-87). See Findings of Fact Nos. 39, 61. See Conclusion of Law No. 66. The greater weight of the credible evidence indicates the response was not as infrequent or slow as suggested by the testimony of Eugene Phillips. He indicated racist graffiti would remain indefinitely and was painted over or cleaned off only 2-3 times during his over four years of employment. (Tr. at 6-7,18). It is more likely that such graffiti would remain for 1-3 weeks before being removed. (Tr. at 96-97, 566). Nonetheless, as previously noted, there is no evidence that this graffiti affected Complainant Tillman. See Finding of Fact No. 39.

82. A possible third flaw in Respondents Monfort's response to racial harassment was its failure, after warning the harassing employee, to check back with the complaining employee to see if he was undergoing any further harassment. It is clear from the record that Respondents Monfort would only rely on the complaining employee or others to report any future harassment. See Findings of Fact Nos. 30, 48, 66-67. There is no evidence in the record to indicate, however, that Tillman would have informed Respondents Monfort of the further harassment if they had asked him about whether such harassment was occurring. For this reason and for reasons stated in the conclusion of law, this flaw is not sufficient to show Respondents Monfort failed to take prompt and appropriate remedial action. See Conclusions of Law Nos. 67.

3. The Evidence In the Record Does Not Establish That Respondents Monfort Failed to Take Prompt and Appropriate Corrective Action When They Were Informed of the Harassment of Complainant Tillman by Bret Goken:

83. As previously noted, personnel manager Bary Carl came to the conclusion that Respondent Bret Goken had provoked the fight through racial harassment. See Finding of Fact No. 37. Respondent Goken was then discharged for provoking the fight. (CP. EX. 8; D. EX. N; Tr. at 730).

84. After his discharge was grieved, Goken was reinstated at the fourth step of the grievance process. Nonetheless, he was still disciplined by being denied back pay for the two and one half week period from his discharge on May 25, 1990 to his reinstatement on June 13, 1990. Thus, although Goken was reinstated, he still sustained what was, in effect, a two and one-half week suspension for fighting. (CP. EX. 8; Tr. at 685, 744, 746). Although "fighting" is listed on his personnel record as being the reason he was dropped from payroll on May 25, 1990, it is clear that his only misconduct in the fight was his act of provoking it by again referring to Complainant Tillman as a 'nigger." See Findings of Fact No. 37, 83. Thus, separate discipline for racial harassment would have duplicated the discipline for "fighting". The two and one half week suspension without pay was prompt and appropriate corrective action for Goken's harassment of Tillman.

Findings of fact continued