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Case of the Month: July 2009

Department of Human Rights finds probable cause that Ames Construction engaged in disability discrimination and reprisal

Case 50618, closed 5-29-09

Charging Party
Joshua Feldten
Apple Valley, MN

Respondent
Ames Construction, 2000 Ames Dr.
Burnsville, MN 55306

When a non-white janitor complained about finding a noose — then a picture of a person hanging from a noose — in his workplace, a manager allegedly told him to get over it and "fit in"

What the Charging Party Alleged

When he was interviewed for a job as a custodian, Joshua Feldten acknowledged that because of a disability, he would need people to show him how to do things, rather than reading written directions. He was hired in March 2006; three months later, he began to have problems at work. He lost his driver’s license following a traffic violation, and a company manager became upset that he would not be able to drive to deliver water to job sites. He argued that driving had not been one of his duties when he was hired, and asked the manager for a job description — it was never provided.

Soon he began to have problems with a coworker, who insisted upon giving him work directions, although the coworker had no authority to do so. The coworker would repeatedly become angry with Feldten, call him "dumb," swear at him, and at one point vowed to make his "life a living hell." "Every f***ing day you are in here at the same time doing the same f*** ing thing. It’s getting f***ing old. That’s it!" the coworker shouted, grabbing a broom out of Feldten’s hand and throwing it.

Feldten complained about this treatment to the manager, who seemed to dismiss his concerns. "We all call each other dumb around here," the manager said. A few months later, Feldten — who is of East Indian descent and dark skinned — found a noose under the seat of his coworker. He mentioned that he felt uncomfortable about the noose to another coworker, who told him to get over it. The next day, while cleaning the break room, Feldten found a piece of paper depicting a person hanging from a noose. He spoke again with the manager, complaining that his coworker was continuing to harass him and calling him stupid. "Maybe this isn’t the right place for you," the manager responded. The manager mentioned that he had learned from a co-worker that Feldten has complained about the noose. You need to get over it and "fit in," the manager suggested.

Four days later, on Nov. 7, 2006, Feldten was fired. "You need to work out whatever issues are affecting you," the manager said. The company was not a "good fit" for him, he added. Later that day, Feldten received an official "separation notice," signed by the manager, which stated another reason for his termination. "Hired for janitorial and wash truck duties — does not have a proper driver’s license CDL." That was not the reason, Feldten believed — the manager knew he had lost his driver’s license five months before firing him. And he had never been told that driving trucks would be one of his job duties.

Feldten filed a charge of discrimination with the Minnesota Department of Human Rights. Other, white employees had not been subjected to the kind of harassment he had faced, Feldten charged. When he had complained about the way he was being treated by a coworker, no action had been taken. He had been fired several days after complaining about a noose in the break room, a situation no one had investigated. As for the company’s concern about his driver’s license, Feldten noted that a white employee whose duties had including driving had also lost his license, but had not been terminated. He had been harassed, treated differently, and ultimately terminated, because of his race, national origin, and disability.

What the Department’s Investigation Found

In answering the charge, the employer argued that it had not terminated Feldten because of a disability or any discriminatory reason; he had been fired because he did not grasp his job tasks and had a hard time remembering things and following directions, the employer maintained.

The department noted in its investigation that Feldten admits he has a hard time remembering things and following directions. These limitations are the result of a disability — attention deficit hyperactivity disorder (ADHD) and mild retardation. However, Feldten was nonetheless capable of performing the essential functions of his job as a custodian, had his employer provided him with a reasonable accommodation as required under the Human Rights Act.

Feldten had requested a copy of his job description, and asked his employer to meet with his "job coach," who was helping him to improve his self-sufficiency at work. The employer had failed to fulfill or even consider either request, and could document no effort to explore a reasonable accommodation for Feldten, though it could have done so without an undue hardship, the department determined.

Thus, the department found probable cause to believe that Feldten’s disability was a factor in his termination, in violation of the Human Rights Act.

Despite the stray remarks and isolation incidents — including the noose and its visual depiction — there was not sufficient evidence to establish that Feldten’s race or national origin were factors in his termination, the department found. The name-calling and teasing Feldten endured may have been insulting, but the incidents were not severe or pervasive enough to support a claim of a hostile work environment under the Human Rights Act.

However, by retaliating against Feldten after he had complained about race discrimination and requested an accommodation, the employer had violated the Human Rights Act, the department’s investigation showed. Although Feldten’s complaint may not have been the sole reason he was fired, it was a motivating factor in the employer’s decision. Thus, the employer had engaged in reprisal, in violation of the Act, the department’s investigation found.

(Note: The case was closed by the Department of Human Rights on 5-29-09; in lieu of settlement, the charging party elected to sue privately.)

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