NAME WITHELD
ADDRESS
RE: ______________
NAME WITHELD (COMPLAINANT) – REBUTTAL
I, Candice Raphiel, reiterate and reassert the contents of the complaint and statement of discrimination dated December 2, 2021. Furthermore, I wish to rebut the response by IKEA submitted through Ogletree, Deakins Attorneys at Law.
Facts
I wish to respond to the facts in IKEA response as follows:
Pursuant to my conversation with Chad Beierle (superior to Daniel Havens) on June 12, 2021, it was confirmed to me and I reiterate, that it is NOT IKEA policy to schedule an employee to work 6 days out of the week. IKEA provides its employees with a schedule that best accommodates a suitable work/life balance. As such, IKEA (its managers and/or supervisors) has always been aware that I hold another job where I am employed to work full time. IKEA has always been happy to accommodate my situation.
At the time of the disagreement, Haven’s system for requesting and granting leave did not exist. No notice or communication was issued to the employees let alone me. Further, I wish to state that as an HL2 worker, I am required to work no less than 20 hours a week. Contrary to this position, I can confirm that on several occasions I have worked less than 20 hours a week and not at my request. Pursuant to these facts, it was not clear exactly how IKEA policies were being applied by my supervisor.
I also noticed that Haven wore a politically branded face mask reading “blue/all lives matter”. In as much as Havens declares to abide by IKEA policy, Haven breached IKEA policy by continuing to wear the mask. This did not have any impact on my assessment of Havens. It was only when we had our disagreement that I worried the mask meant more and it felt like a blue/all lives matter vs. black lives matter disagreement. I have never expressed my political affiliations or ideologies at the work place.
Following our disagreement, Havens admitted to me that he has been avoiding me. Further, I received an email from him notifying me about clocking in/out times. I noted that the communication was sent to me alone and proceeded to notify HR of the same as I felt that I was being targeted by Havens. This was not the first time I alone received emails from Havens.
HR recommended a mediation session between myself and Havens, however, I felt that Havens had never attempted to reconcile matters between us and only felt compelled to because of HR and not from the goodness of his own intentions. I declined the mediation session as I believed that all I had to say was already with HR.
Following my rejection of the mediation session, Havens approached me and pressured me into a conversation. As stated in my complaint, I felt intimidated by Havens as his voice would grow loud and he would bang his phone on the desk. He intimated that HR had advised him to avoid me and later to talk to me while I was alone. He insisted that he was not racist or acting to discriminate me. However, based on his voice and body language I was not convinced, and was in fact fearful for my safety.
Raphiel’s claim against discrimination
IKEA relies on the case of Trujillo v. Univ. of Colo 157 F.3d 1211, 1214 (10th Cir. 1988), which lays out the principal requirements for establishing a prima facie case against discrimination. The court held that a claiming party must show (1) they are a member of a racial minority; (2) they have suffered an adverse employment action; and (3) similar situated employees were treated differently.
In as far as whether I belong to a racial minority group, this fact is not disputed. We therefore remain with the question of whether I suffered an adverse employment action and whether similar treatment was experienced by her colleagues.
The primary purpose of anti-discrimination laws is, among other thing, to “assure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens.” See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
In Colorado Civil Rights Commission v. State, 30 Colo.App. 10, 18, 488 P.2d 83, 87 (1971), the court of appeals recognized that, in cases alleging discrimination, direct evidence of overt discrimination is not a prerequisite to a finding of discrimination. For some time, it has been known that “one intent on violating the Law Against Discrimination cannot be expected to declare or announce his purpose. Far more likely is it that he will pursue his discriminatory practices in ways that are devious, by methods subtle and elusive for we deal with an area in which `subtleties of conduct … play no small part.'” Holland v. Edwards, 307 N.Y. 38, 119 N.E.2d 581, 584 (1954).
“[W]hile objective facts may be proved directly, the state of a man’s mind must be inferred from the things he says or does…. [C]ourts and juries every day pass upon knowledge, belief and intent the state of men’s mindshaving before them no more than evidence of their words and conduct, from which, in ordinary human experience, mental condition may be inferred.” See American Communications Ass’n v. Douds, 339 U.S. 382, 411, 70 S. Ct. 674, 94 L. Ed. 925 (1950). In employment discrimination cases, [t]here will seldom be `eyewitness’ testimony as to the employer’s mental processes.” Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716, 103 S. Ct. 1478, 75 L. Ed. 2d 403 (1983). Additionally, “[v]ictims of heavy-handed uses of the spoils system [should] not [be] limited to redress in only those (relatively rare) instances in which a `smoking gun’ can be produced.” Acosta-Orozco v. Rodriguez-de-Rivera, 132 F.3d 97, 102 (1st Cir. 1997).
IKEA through its response has supplied various documents as exhibits in support of their defense against my complaint. Among the documents are policies adopted by IKEA that are intended to regulate employee-employer interactions in a fair and equitable manner. However, mere production of documents does not sanitize the conduct of IKEA’s managers and/or supervisors, nor are they automatically discharged of liability. Thus IKEA still bears the burden of demonstrating, through irrefutable evidence, that the contents of the policies were implemented to the letter to address the concerns I raised.
I have always abided by the IKEA policies, though the policies provided on the IKEA website are limited to what has been tendered as exhibits. I have also always abided by the customs and practices upheld by my colleagues, including managers and supervisors. Prior to Havens appointment as our supervisor, my colleagues and I would apply through the supervisor calendar for purposes of approving leave days. This had become a practice and custom among the employees. The courts have clearly laid out that “it must be shown by clear and convincing evidence that the practice occurred a sufficient number of times to indicate a regular course of business. Such a showing is necessary to demonstrate the parties’ implied knowledge of and reliance on the custom or usage” see Adkins v. Inco Alloys Intern., Inc., 187 W.Va. at 227, 417 S.E.2d at 918 (1992) No notice or communication was issued by IKEA to categorically deny or forbid us from sharing our calendars with our previous supervisor. Further, IKEA’s response does not dispute that indeed my colleagues and I would post leave days through our supervisor’s calendar for purposes of obtaining approval. In fact, any such changes or procedure alleged by Havens was introduced after the initial altercation between Havens and I.
In McDonnell Douglas, 411 U.S. 792, 800, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), the Supreme Court held that the complainant could rebut McDonnell Douglas’ presumptively valid reason for rejecting the complainant by showing that the reason was a pretext for discrimination. Id. at 805, 93 S. Ct. at 1825-26. The McDonnell Douglas Court stated that in showing pretext, it would be especially relevant for the complainant to introduce evidence that Caucasian persons involved in comparable conduct as the complainant were nevertheless rehired. Id. at 804, 93 S. Ct. at 1825. According to the Supreme Court in a subsequent case, a complainant could succeed in proving pretext either by directly showing that a discriminatory reason more likely motivated the employer or by indirectly showing that the employer’s proffered explanation is unworthy of credence. See Bodaghi v. Department of Natural Resources, 450 U.S. at 256, 101 S. Ct. at 1095.In Colorado Civil Rights Commission v. Big 0 Tires, Inc., 940 P.2d 397 (Colo. 1997) the court established that “Thurman presented evidence that Big O’s nondiscriminatory reason for her discharge was a pretext for a discriminatory reason. Specifically, Thurman introduced evidence that during the same week in which Thurman committed the time clock violations for which she was fired, Edmonds, a Caucasian inside sales clerk, committed comparable time clock violations but that Edmonds was not fired at the same time. This evidence was sufficient to create an inference that Big O’s asserted legitimate reason for terminating Thurman’s employment was a pretext for discrimination.”
As stated in my compliant, Havens became our supervisor and shortly after, in the month of June 2021, I was denied leave which was pre-approved by the previous supervisor prior to her exit. As we had always conducted ourselves, I posted on Havens calendar indicating my unavailability during the Juneteenth period. However, Havens rejected my pre-approved leave claiming that the approval had been obtained unprocedurally. Further, Havens threatened to take me to HR if I did not bow to his demand. Surprisingly and to my absolute shock, Havens would later proceed to allow two of my white colleagues to post on his calendar for leave days, yet it was unprocedural when it was my turn.
I have never been the subject of any disciplinary cases and I have always performed my duties and responsibilities as has been required of me since my employment. There were no clashes between my previous supervisor and I. However, when I noticed biased treatment occasioned by Havens’ conduct, I proceeded to report the incident to the Human Resources personnel thereby engaging in a protected activity by complaining to a supervisor or HR about discrimination against myself. In Crawford v. Metropolitan Government of Nashville & Davidson County, 555 U.S. 271 (2009), the Supreme Court held that “the term ‘oppose’ being left undefined by the statute, carries its ordinary meaning: ‘to resist or antagonize; to contend against; to confront; resist; withstand’”. I did not stand for Havens’ conduct towards me and I was devastated to learn that I was the only one to receive such treatment. I immediately opposed his conduct and reported the same to HR.
Shortly after my reporting to the HR personnel, Havens created distance and would not communicate with me. This is a fact which he willingly admitted to me without reservation. Following his intentional distancing, I was never invited to after work activities (i.e. going out for drinks) that were organized by Havens. Equally concerning was that whenever Havens would address me, he would do so in a confrontational and aggressive manner that was unique to interactions with me. Despite my attempts to remain calm and collected, he would raise his voice against me and use aggressive body language. Havens’ conduct is affirmed by Ross Herrel’s statement marked as Exhibit 12 in IKEA’s response. Similar incidents have recurred several times.
With respect to Exhibit 17 in IKEA’s response, I received the salary increment weeks after other colleagues were awarded their increments and only because I had brought up the conversation. Otherwise it is not clear when or if I would have been granted the increased pay. The delay to grant me an increased salary was occasioned by the performance review prepared by Havens where I received a low score for communication. However, given the evidence provided by IKEA, it is clear that I have no problem communicating with In Crawford v. Carroll, 529 F.3d 961, 974 (11th Cir. 2008) the court determined that an unfavorable performance review, which rendered an employee ineligible to receive certain privileges, was a material adverse employment action. I expressed my concerns to Michael, HR personnel, who responded stating that he will revisit the performance review with the intention of revising the same. However, I have received no response to date.
Raphiel’s claim against retaliation
The law prohibits punishing employees for asserting their rights to be free from employment discrimination including harassment. The language of the “opposition” clause of Title VII’s anti-retaliation provision states that “it shall be an unlawful employment practice for an employer to discriminate against any employee because the employee opposed any act made an unlawful employment practice.” 42 U.S.C. § 2000e–3(a). Also see Crawford v. Metropolitan Government of Nashville & Davidson County, 555 U.S. 271 (2009). Title VII prohibits an employer from retaliating against an employee who has either (1) “opposed any practice made an unlawful employment practice by this subchapter,” or (2) “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter,” 42 USC 2000e-3(a).
IKEA relies upon the case of Somoza v. Univ. Denver, 513 F.3d 1206, 1212 (10th Circ. 2008), wherein the court sets down three principle determinants of retaliation. (1) engagement in a protected opposition to discrimination; (2) a reasonable employee would have found the challenged action materially adverse; and (3) a causal connection exists between the protected activity and the adverse action.
On the first issue, it is clearly established above that I engaged in a protected activity when I reported Havens’ conduct towards me to the Human Resources Personnel.
On the second issue, it is clear that Havens’ actions toward me have not been received well by other colleagues. In fact, the same is well highlighted via Ross Herrel’s statement marked as Exhibit 12 in IKEA’s response. It is clear from the statement that Mr. Herrel found the interaction to be disturbing, particularly given how Haven conducted himself both verbally and physically.
On issue three, it is established in Piercy v. Maketa 480 F.3d 1192, 1198 (10th Cir. 2007) the court quotes Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999) stating that “A retaliatory motive may be inferred when an adverse action closely follows protected activity.” In the present suit, the Plaintiff has displayed positive behavior as an employee since her employment in 2018. In addition, the Plaintiff got along well with her colleagues, as well as her previous supervisor. No conflict, complaint or negative review ever arose against the Plaintiff.
Suddenly, following the introduction of a new supervisor and my report to HR against Havens, I was retaliated against by (1) remaining isolated from me and refusing to communicate with me; (2) refusing to invite me to after work hangouts with colleagues; (3) confronting me, raising his voice at me and using aggressive body language; and (4) threatening me not to make further complaints to HR and that he is “putting his foot down on this”.
It is no mere coincidence that Havens’ conduct toward me continues to be hostile and aggressive. The first time I was offended by his conduct, he denied me pre-approved leave for Juneteenth when I posted on his calendar. While on the other hand he approached our white colleagues and personally requested them to post on his calendar for purposes of granting leave. His reason for denying me leave was because he alleged I obtained leave unprocedurally, while the same procedure I used was allowed for our white colleagues. I immediately reported the matter to HR and action was to be taken.
Unfortunately, no action was taken by Havens to amend his behavior and conduct towards me. Instead, he would become loud and aggressive, if not downright ignoring me.
Observations on IKEA’s exhibits
I have reviewed the response provided by IKEA and note with a lot of concern that a number of the exhibits provided are either partially produced to favor IKEA, or they lack any veracity as to their authenticity.
EXHIBIT 13: The email was part of a conversation thread and not a stand-alone email as the exhibit suggests.
EXHIBIT 12: The exhibit is handwritten and does not name the author or contain any signatures, date or time to verify the authenticity of the events depicted.
Conclusion
It is clear from the above that Havens has conducted himself in an inappropriate manner. He has engaged in acts of discrimination against me as a black woman and has retaliated against me following my complaint to the HR personnel. I have provided all re
Yours faithfully,
NAME WITHELD
At Legal writing experts, we would be happy to assist in preparing any legal document you need. We are international lawyers and attorneys with significant experience in legal drafting, Commercial-Corporate practice and consulting. In the last few years, we have successfully undertaken similar assignments for clients from different jurisdictions. If given this opportunity, The LegalPen will be able to prepare the legal document within the shortest time possible. You can send us your quick enquiry ( here )