Meeting of January 14, 2015 - Workplace Harassment
I want to thank the Commission for giving me the opportunity today to talk about a recent race and national origin harassment case I litigated in Wyoming on behalf of the Commission. The case is known as EEOC v. Dart Energy,1 but under integrated-enterprise and joint-employer theories, the Commission actually sued three companies -- Dart Energy Corp., Beckman Production Services, Inc., and J&R Well Service, LLC.2 To complicate matters, the suit was joined by eleven Intervenors who also sued one of their supervisors in his individual capacity under 42 U.S.C. §1981.3 So technically there were sixteen parties to the lawsuit. For purposes of today, I will try to keep things simple. I'll probably just refer to "the Dart case," or when I'm talking about the Defendants, I will do so generically or I will talk about J&R, since it was J&R's facilities in Edgerton, Wyoming that were at the forefront EEOC's lawsuit.
Before I get to the heart of this case, however, I think it's important to understand something about the industry and the type of work at issue. J&R Well Services is an oil and gas servicing company. J&R was and is owned by Beckman Production Services, which until 2012 was owned by Dart Energy Corporation. Neither J&R, nor Beckman, nor Dart owned the oil wells where their employees worked. Instead, they contracted with the oil companies to provide services -- things like operating work over rigs and vacuum truck services. Personally, I knew nothing about the oil industry or the oil and gas servicing industry before I litigated this case. I had no idea what a workover rig was or how a vacuum truck operated. Frankly, I'm still not comfortable testifying in any detail about how everything works. The specifics, however, are not that important. What is important is that these can be really dangerous jobs. The employees are all working near materials that are highly combustible and pressurized. They are working with heavy machinery, often in remote locations and under extreme weather conditions. For the folks on the rigs, the work is particularly dangerous. Claimant Derrick Hands, for example, may be positioned at the top of the rig, several stories in the air, racking heavy piping as quickly as possible. At least one of the seventeen aggrieved individuals in our case had his foot smashed by one of the pipes. Another dislocated his arm when his hand got caught in the elevator. Yet another was injured when he was hit with a sledgehammer. All told, about a third of the seventeen aggrieved individuals in our case against Dart were injured at one point or another during their employment.
I mention the dangers of these jobs for a reason -- namely that the dangerous nature of a job can exacerbate the effect of racial discrimination and harassment. Put differently, it is bad enough for an employee to have to endure racist comments from coworkers and supervisors in a nice, warm office environment. It is that much worse when the employee is depending on those coworkers and supervisors for his safety. As one of our Black claimants, Willie Chavez, put it: "your life was in the hands of other people who judged you by the color of your skin."
Another reason that I mention the nature of the industry is that I believe there is the possibility to effect change by exerting pressure on the oil companies themselves. If Anadarko, for example, had said to J&R Well "we're not going to use your company unless you train your employees, not just about safety, but about employment discrimination," maybe the supervisors and managers at J&R would have taken seriously the complaints of harassment they received.
That said, I'd like to talk a little about the types of harassment and retaliation that were at the center of the Dart case, what I think are the root causes of that harassment, and what I think can be done to prevent the type of race and national origin harassment we saw in Dart.
The Allegations of Harassment and Retaliation
To begin, all seventeen of the men who were claimants in Dart had varying degrees of African American, Native American, or Hispanic ancestry. Several of the men were truck drivers, three were mechanics, and the rest worked on the rigs. They worked at different times beginning in 2005 and continuing until 2014. Yet, they all tell a very similar story - that derogatory comments and so-called "jokes" about race and national origin were commonplace at J&R and that complaints to management were either ignored or resulted in retaliation.
Mr. Chavez, for example, who is Black and worked on the rigs for about nine months in 2010 and 2011, was singled out from the very beginning when his coworkers nicknamed him "nightcrawler." Ordinarily new guys are just called "worm." Mr. Chavez also heard racist comments on a regular basis, including offhand comments about "thinking he could be lazy now that we have a Black president" and "it's not Black History Month, so get to work." Mr. Chavez also recalls seeing a swastika etched into the ground near his rig and hearing a joke about KKK members going surfing. The punch line of the so-called "joke" was "hang 10." Even the Area Manager, who was in charge of all operations out of J&R's Edgerton, Wyoming office, used the phrase "nigger that pipe down" in Chavez's presence. When Chavez complained to his pusher about his nickname and the racist comments, nothing happened, and he was made to feel like a tattletale who couldn't take a joke. When Mr. Chavez complained about a local farmer calling him "boy" on the job, his supervisor deflected by saying "oh, he's just country."
Other Black claimants tell similar stories. Sean Mapp describes hearing the "n" word from the very beginning of his employment in 2008. His rig operator, for example, threw a CD out of the window of the truck, declaring, "I don't listen to that nigger music." Mr. Mapp also explained that terms such as "nigger-rigging" were common on the rigs. Perhaps worst of all though, Mr. Mapp described a situation where he was working several stories in the air on the rig, and his operator intentionally kept causing the rig to shake, I believe by starting and stopping the elevator. Mr. Mapp heard the operator tell his coworkers "this will get that nigger to quit." When Mr. Mapp complained to the Area Manager, his boss, he was told something to the effect of "they're just messing with you. Don't worry about it."
Hispanic employees on the rigs suffered similar scorn and ridicule. Josh Neathery, for example, was subjected to derogatory comments about "wetbacks" and "green cards." His coworkers talked about calling the Immigration Service whenever a crew of Mexican guys from another company showed up to work in the fields. On one occasion, Mr. Neathery was told to reach down into a drilling hole to fish out pieces of wood while the drill was still going. He questioned whether doing so was safe. Neathery was told that he shouldn't mind since "Mexicans take all the dirty jobs that nobody wants anyways." The Truck Pusher who was at the forefront of many of the claimants' grievances, commented about Mr. Neathery being the companies' "espaldo mojado" which means "wetback" or "illegal immigrant." Like so many of the claimants, Neathery complained about the comments to the Area Manager who did nothing about it. Neathery also called J&R's main office in Powell, Wyoming. The women he talked to told him he should be thankful that he had a job and that Wyoming is a right-to-work state where a company doesn't have to have a reason to fire someone. Mr. Neathery's claims are particularly important because he worked at J&R in 2013, more than three years after charges of discrimination were first filed against J&R and Dart.
As bad as things were for minority employees on the rigs, life was equally if not more harassing for the minority employees who worked as truck drivers and mechanics out of the main office in Edgerton. Chief among their complaints was the Truck Pusher, the second in command at the Edgerton facility.
Don Longtine, who is a member of the Eastern Shoshone tribe, described his first day at work in 2005 as follows: He said that the Truck Pusher came up to him and asked him where he was from. Longtine told the Truck Pusher that he was from Riverton, to which Truck Pusher responded by asking how he "liked living over there with all the drunken Indians." Mr. Longtine told him that he, himself, was half Indian, and the Truck Pusher said, "well you're only half worthless, then."
On another occasion, Longtine was talking to Kevin Armstrong, one of the other Native American claimants. They were discussing the Medicine Wheel in Sheridan, Wyoming and Custer's battlefield when the Truck Pusher came up and made a comment about how Custer should have killed all the redskins.
Besides "redskin," Native American employees were regularly referred to as "wagon burners." Gary Burton, for example, recalls the day the Truck Pusher found out he was part Native American. Burton was talking to Don Longtine and Kevin Armstrong in the breakroom. Burton mentioned to Longtine and Armstrong that he had Native American ancestry too. The Truck Pusher overheard and said to him "oh you're a wagon burner too, huh." Thereafter, he would say things to Burton like "where's your wagon burning brother," referring to Longtine or Armstrong.
The Truck Pusher was equally bigoted with other minority groups, referring to blacks as "niggers" and Hispanics as "wetbacks" and "beaners." Shovels were "Mexican backhoes" and Mexicans were responsible for spreading swine flu. One of the claimants in the case, Earl Suffel, recalls the Truck Pusher asking him his nationality. When Suffel said, "what does it matter," the Truck Pusher responded "it doesn't, they're all niggers." The list of comments could go on and on.4
And to be clear, it wasn't just the claimants who told stories like this. During the litigation I obtained two affidavits from White coworkers. The first coworker described the morning trucker meetings as a time when the Truck Pusher regularly made disparaging remarks about non-White employees, including calling people "worthless Indian," "wagon burner," and "worthless Spic." The other White witness recalled him saying things like "you guys better get your shit together and stop acting like a bunch of beaners." The same White witness also said that the Area Manager, the guy to whom so many of the individuals complained, was "one of the most prejudiced people I've met." In addition, at least one of our claimants had medical records indicating the problems he was having at work with harassment.
So why, you might ask, did these guys stay? Truth told, some of them did not. They quit as soon as they could find other work. Others, however, stuck around because good money and benefits don't come easy to men with little education and not many options. These guys had families to take care of. So they swallowed their pride. They kept their heads down. They earned a paycheck.
Eventually, however, it became too much. People started complaining. Unfortunately, as I've already alluded to, the Area Manager and other supervisors responded with comments like "this is the oil fields, that's just how people talk," or "I'm sick of tired of all this bitching. You guys just need to f…ing do your work." Only in 2009 did the Area Manager finally tell Don Longtine and Mike Brasiel, who had made multiple complaints, that he would take their complaints to the General Manager of J&R. Whether he actually took the complaints to the General Manager is unclear, but according to Longtine and Brasiel, the Area Manager said that General Manager told them to "grow a set of balls and do something about it."
So they did do something. In the summer of 2009, Longtine, Brasiel, and nine other aggrieved individuals found a lawyer, and beginning in September 2009, they started filing charges of discrimination with the Wyoming Department of Employment. All told the eleven Charging Parties submitted eighteen Charges of Discrimination, encompassing hostile work environment, pay inequalities, termination, constructive discharge, and retaliation.
Examples of the alleged retaliation include write ups, demotions, and three terminations, all occurring in October or early November 2009, less than a month after the charges of discrimination were filed. There are also accusations that the Area Manager began trying to antagonize people like Brasiel by staring him down and puffing up his chest. Apparently, the Truck Pusher also mentioned shooting people with a high-powered rifle.
In 2010, the Charges were transferred to the Denver Field Office of the EEOC, which continued investigating the various allegations. In May 2012, the Denver Field Office issued letters of determination finding that reasonable cause existed to believe that the Defendants discriminated against a class of men who worked out of the Edgerton, Colorado facility of J&R. Attempts to conciliate dragged into 2013. The lawsuit was filed in the Fall of 2013. We settled in November 2014 for $1.2 million dollars and a three-year consent decree, which was entered by the District Court on December 1, 2014.5 The $1.2 million, I am told, is the largest EEOC settlement in Wyoming history.
Root Causes and Solutions
So where did the Defendants go wrong? Why was it that, even after numerous complaints, the harassment was allowed to continue? What can be done to prevent race and national origin discrimination? Are there any specific lessons to be learned from Dart?
First, understanding that I am totally stating the obvious, there can be no question that the kind of racial discrimination we saw in Dart is caused by underlying prejudice and racism. Unfortunately, prejudice is something that has been part of American history for decades. It doesn't have an easy solution. Some of these men were written up, demoted, and even fired simply because they stood up for themselves. And, although there is that old adage about sticks and stones, anyone who talked to these guys knows that adage is not true. Names do hurt. No one wants to be told they are dumb or stupid or worthless just because one or both of their parents, or grandparents, or great-grandparents in this case were something other than White.
It is kind of hard for me to opine about what we in the Commission can do to fight underlying prejudice. I'm a trial lawyer, after all, not an academic in race theory. For what it is worth though, I think hearings like these and press coverage on issues of race and race relations are a good step. If nothing else, publicity brings not just overt prejudice, but covert and even unconscious bias, into the light of public scrutiny. It is hard to fix what you cannot see. So I'd like to commend the Commission for holding this hearing and continuing to publicize cases like Dart.
I also want to commend the Commission in its various outreach efforts, both to employers and vulnerable populations. But, I would also like to encourage the EEOC to do more outreach with schools. I was a public school teacher for four years before going to law school, and I can say with some certainty, that both teachers and students would love a distraction from their usual day. More importantly, kids and young adults aren't always hardened by experience. Their prejudice is less engrained. And they still have the kind of idealism that we need to combat employment discrimination.
For every carrot, however, we also need a stick. Employers need to know that they can't get away with allowing the kind of bigotry that was exuded by the Truck Pusher and other individuals in the Dart case. Archie Bunker might have amused people in a 1970's sitcom, but his style of bigotry has no place in a 21st century workplace. Employers need to discipline the Archie Bunkers of the world. If employers are not going to discipline or fire people like the Truck Pusher in this case, and if employers are not going to train their employees that derogatory comments and so-called "jokes" about race and national origin are not acceptable, the EEOC and the private plaintiffs bar need to step in. Unfortunately, in places like Wyoming, there really isn't a robust plaintiffs' employment bar, and therefore it is imperative that the Commission make its presence felt in those areas. Litigation and monitoring can make a difference.
The Commission also needs to focus on certain industries in my opinion, like oil and gas, where we repeatedly see an expectation that employees be tough enough to put up with anything thrown their way. A roughneck, no less than an accountant or schoolteacher, deserves to come to a workplace free of racial ridicule.
Finally, I think when EEOC gets involved in a lawsuit, our practice of always seeking equitable relief that is tailored to the particular problems of that employer, is critical. In Dart, for example, one of the biggest problems was that, prior to charges of discrimination being filed in 2009, J&R provided little or no training to its employees and managers on race discrimination and laws prohibiting race harassment. Even after 2009, it does not appear that Defendants engaged in any form of regular training. To address this problem, we included in the Consent Decree mandatory EEO training for not just line employees, but management and human resources officials.6
Failure to implement existing policies was also a problem in Dart. While there was an EEO policy in the handbook, a lot of the employees said they never received that handbook, and certainly no one went through the policy to reiterate its importance. It was just "here's the handbook. Sign this acknowledgement. And by the way you also need to sign this piece of paper, and this piece of paper, and this piece of paper too." To address this issue, we included a provision in the Decree requiring a fulsome EEO policy review, followed by a redistribution of the policy to all employees.7
Another issue in Dart was that Defendants seemed to have an expectation that all problems were to be dealt with locally, i.e. employees understood they were not supposed to go over the Area Manager's head. It was like there was a little bubble around Edgerton, and minority employees believed that if they burst the bubble, they would get fired. And in fact, that's exactly what happened to some of them after they filed charges of discrimination. To combat this problem, we built into the Decree a provision requiring J&R to establish a hotline number for anonymous complaints of discrimination. The Decree also requires J&R to post the number conspicuously at the Edgerton facility as well as in trailers that are maintained out in the field.8 In addition, the Decree requires J&R to create and distribute annually an anonymous survey that will allow employees to raise issues of race and national origin discrimination.9 J&R, in turn, is required by the Decree to include such complaints in their semi-annual reports to the Commission.10
We included a lot of other provisions in the Decree too, but I'll mention just one more - a provision requiring J&R to build EEO compliance and compliance with the Decree into their management evaluation and compensation system.11 The rationale is that managers can see that their evaluations and bonuses will hinge, not just on profits or revenue, but also on treating employees fairly and in accordance with the law.
Whether or not these provisions will make a difference, only time will tell. What I know, however, is that EEOC was able to make a difference in seventeen men's lives, and hopefully the lives of every other J&R employee going forward. I want to give credit to the entire team that worked on this case including the folks at the Wyoming FEPA, EEOC Investigator Sandy Nakata, RAS Expert Bob LaJeunesse, Paralegal Rochelle Harris, and Attorneys Stephanie Struble, Bill Moench, Rita Kittle, and Steve Murray. I'd also like to give credit to Regional Attorney Mary Jo O'Neil for her guidance and assistance in settling this case. Most importantly, I want to give credit to the brave men who had the courage to come forward with their complaints, eleven of whom stuck it out for more than five years. One of those men, Luady Montoya, is with me today to talk about his experience.
Before I turn it over to Mr. Montoya though, I want to thank the Commission and OGC again for inviting me to speak today. It truly is an honor.