Office of institutional Equity MEMORANDUM To: Dr. Diane Anderson, Vice President Student Affairs From: Joyce Lew, Assistant Director Institutional Equity er Tammy Miller, Associate Director Institutional Equlty Subject: Racial Harassment/Discrimination Finding — Mitchell Beare, Respondent Dated: October 20, 2017 Dr. Evelyn Winfield-Thomas, Executive Director Institutional Equity ‘The University was put on notice on September 11, 2017, that Bernhard Center Operations ‘Manager, Mitchell Beare (hereafter, the respondent) may have engaged in pervasive or egregious acts of racial harassment and discrimination, creating a hostile work environment for the Director of Event Services, Smith Moore (hereafter, the complainant). ‘The specific incident which prompted the complaint to Institutional Equity (IE) alleges the respondent held a looped rope, suggestive of a noose, behind the complainant's head while the complainant was seated at a table preparing to participate in Diversity and Inclusion training, Iftrue, such conduct could constitute a discrimination Policy which prohibits membership, including race. lation of the Westem Michigan University Non- imination on the basis of any protected class It was determined that an investigation would be conducted to determine: 1) Ifthe allegations were true, and 2) If true, does the behavior rise to the level of discrimination or harassment prohibited by the University Non-Discrimination Policy. WMU Non-diserimination Policy ‘Western Michigan University prohibits discrimination or harassment which violates the law or which constitutes inappropriate or unprofessional limitation of employment opportunity, University facility access, or participation in University activities, onthe basi of race, color, religion, national origin, sex, sexual orientation, gender identity, age, disability, protected veteran status, height, weight, or marital status. (Revised April 2006)| Racial [arassment/Disorimination Finding | Page 2 | | ‘This report provides details the information gathered from the complainant, three individuals who witnessed the August 25, 2017 incident and four other parties who had relevant information regarding the allegations, ‘The respondent elected not to participate in the investigation. Complainant Statement: i ‘The complainant alleges that the respondent has discriminated against him by: ‘© Engaging in behavior during an August 25, 2017 Diversity and Inclusion training session in Which he attempted to put a looped rope/noose around the complainant's head from behind as, the complainant was seated. * Repeatedly profiling and making racial remarks about Bemhard Center events attended primarily by Black individuals. © Making racially inappropriate remarks about students of a particular ethnic group and calling them “crazy Asians”. + Providing the complainant with a list of events and stating that the complainant needed to call the organizers to “make sure they know the rules.” ‘The majority of the list consisted of events planned by Black organizations or attended primarily by Black individuals. ‘© Complained to department staff about scheduling “those groups”, referring to events planned or primarily attended by Black individuals. ‘© Continuous attempts to sabotage the complainant in his position by making negative ‘comments to house staff about the complainant's ability to perform and knowledge of his job, and interfering in job assignments in attempts to sabotage the smooth operation of the catering department. August 25, 2017 Incident ‘The complainant entered room 4010 in the College of Health and Human Services (CHHS) building prior to the 9:00 am start ofa day-long Diversity and Inclusion training session for ‘Bernhard Center staff and student employees. The complainant approuched a table at the front of ‘the room where the respondent and staff members Cathy Johnson, Johnny Paige and Tony ‘Thompson were seated, Because of the nature of the training, and the numerous issues the complainant had with the respondent regarding alleged racial discrimination and work-related issues, the complainant made a point of siting next to the respondent with the intention of setting a positive tone for the training, ‘The training session had not started yet so the respondent stood and walked over to the next table and spoke with student employees for a few minutes, Before returning to sit atthe table, the respondent went to the wall behind the complainant where a rope hanging from the ceiling was tied off. The complainant was looking to the side and saw the respondent untie the rope from the wall and apptoach the back of his chair, While the respondent approached the complainant from behind, he put a loop in the rope, suggestive of a noose, and held it behind the complainant’s head. The complainant heard Johnny Paige say “No, you can’t do that”, or something similar, to the respondent, The respondent then tied the rope back on the wall and returned to his seat. At that point the training started and the facilitator had the individuals move from the table to engage in an activity.Racial Harassment/Discrimination Finding Page 3 The complainant was extremely upset and was unable to complete the training, leaving after about an hour. Later that day, Johnny Paige spoke with the complainant and expressed disbelief at what he saw the respondent do with the rope behind the complainant. The complainant made a remark along the lines of “Yeah, I saw it, I don’t deat with stupid” and walked away. ‘The complainant was extremely upset over the weekend, thinking about how he was going to address the incident. On Monday, August 28, 2017, the complainant learned that the respondent had apologized to both Johnny Paige and Tony Thompson about the rope incident, but denied to them that he put a loop behind the complainant’s head. Also on Monday, the respondent approached the complainant and asked ifhe had a few minutes, to which the complainant replied, “No, I don’t”. ‘On Monday, August 28, 2017, the complainant approached Bemhard Center Direetor, Paul Terzino and shared the incident with the rope as a “hypothetical situation”. Monday evening as he drove home from work, the complainant called Paul and told him the incident was not hypothetical, and that the respondent held a looped rope above the complainant’s head prior to the start of the Diversity and Inclusion training the previous Friday, August 25, 2017, The complainant informed aul that he did not feel that he could work with, or even work in the same area as the respondent any longer. The complainant informed Paul that he needed to take some time off work. ‘The complainant was informed on Wednesday, August 30, 2017, that the respondent was placed on a leave of absence pending an IE investigation. ‘The complainant returned to work the following day, Thursday, August 31, 2017. The complainant reported continued feelings of anger, anxiety, embarrassment and humiliation as a result of the incident. Later in the week the complainant learned that the respondent was allowed to retire, effective immediately, and receive retirement benefits. ‘The complainant feels strongly that the respondent was rewarded for his egregious behavior by being allowed to retire with benefits, without any consequences for his behavior. Bernhard Center Events From the time the complainant started working with him, the respondent consistently complained about events organized or attended primarily by Black individuals, The respondent consistently grouped them by race and referred to them as “those groups”. The respondent made negative comments about special requests made for events held by Black groups, or the cleanup required after these events. Overall, the respondent closely scrutinized any event primarily attended or sponsored by Black individuals. The respondent perceived these particular events to be problematic, complaining that they made special requests, did not follow Bernhard Center policies and required more clean up after the event. The respondent was also more likely to request a WMU Department of Public Safety (DPS) presence during the events sponsored or attended by Black individuals. ‘The respondent did not request DPS presence for similar events held by other groups. ‘The respondent's attitude toward events by Black individuals or groups seemed to “trickle down” to the Bernhard Center student employees who worked these events. ‘The respondent “invoked fear” by complaining that “something is going to go wrong”. In front of student employees, the respondent suggested the need for DPS to be present when Black individuals or groups held events ERacial Harassment/Discrimination Finding Page 4 in the Bernhard Center. Bemhard Center student employees working the events became less likely to provide special requests (e.g., moving a piano) for these groups during their events without approval from the complainant, Approval was not required for student employees to grant special requests for other groups/events. On one occasion, the responclent gave a list of groups or events that he had “concems about” to the complainant and informed the complainant that he needed to “make sure they know the rules”, Most of the list consisted of events organized or attended primarily by Black individuals. The complainant felt the list was clearly an example of the respondent's tendency to racially profile these groups, He shared the list and his concerns with Paul Terzino, "The complainant stated that the respondent interfered with and attempted to sabotage him in the performance of his duties on a regular basis, He was demeaning, argumentative, and engaged in micro-agaressive behavior on a daily basis toward the complainant, Micto-aggressive behavior can be defined as casual degradation, insults and dismissals toward a member or members of a ‘marginalized group (such as a racial minority) ‘The complainant had numerous discussions with the Bernhard Center Director regarding the respondent interfering with his work and racial profiling of events attended by Black groups or individuals. The complainant agreed that changing the reporting relationship of the house staff to him would prevent the respondent from interfering or attempting to sabotage the complainant's job duties; however, the complainant did not receive additional compensation for increased responsibilities necessitated by the respondent's behavior. It appeared that the respondent was rewarded for his inappropriate behavior by having less work but no change in title or pay. ‘The complainant believes that the respondent is capable of violence due to his explosive temper, physical outbursts and talk of gun rights and collecting weapons. ‘The complainant expressed concerns about retaliation for filing a complaint with TE. The complainant expressed greater concern and frustration that institutionalized racism and white privilege at the University allowed the incident with the rope on August 25, 2017 to oceur with no ‘apparent consequences to the respondent. Respondent Statement TE reached out to the respondent as follows: September 20: © emailed letter requesting a meeting, ‘© Respondent contacted IE and scheduled a mecting for September 21. ‘+ Respondent called TE later in the day and cancelled the meeting because he wanted to consult with an attomey. + Respondent said he would contact IE after consulting with his attomey. September 25: + IE sent second email letter requesting a meeting. 4Racial Harassment/Diserimination Finding Page 5 «Respondent called TE and stated he would not be meeting with IE and he would not answer any questions over the telephone, 1B informed the respondent in the letters, whether he chose to participate or not, an investigation could proceed, including contacting other parties involved, without the benefit of his input. Witnesses Statement Summary TE interviewed seven witnesses. All witnesses agreed to be interviewed and all were interviewed individually, Below is a summary of the information provided by the witnesses: ‘© Three individuals interviewed witnessed the August 25, 2017, incident. Each of these dividuals stated that the respondent clearly made a loop in the rope and approached the complainant from behind as if he intended to put the rope over the complainant's head. © One witness stated that the respondent had a “small smirk” on his face as he approached the complainant from behind with the rope. © One witness stated that, if he had not been stopped, it is their belief thatthe respondent would have put the rope around the complainant’s neck. © Each of the witnesses to the incident stated that they were shocked. One witness referred to the incident as “horrifying”. © Two witnesses stated that the respondent apologized to them on the following Monday, August 28, 2017. When he apologized to one witness, the witness asked the respondent, “What were you thinking? That could have been on Facebook”, The respondent replied, “Yeah that wasn’t appropriate”, However, after apologizing, the respondent went on to tell two witnesses that they misunderstood what he was doing with the rope. The respondent told both witnesses that he was just playing with the rope and did not realize he was behind the complainant, Both witnesses, both Black males, believed the respondent was purposefully holding the rope in a loop above the complainant's head, as if it were a noose. The respondent did not apologize to the third witness, a white female, but he spoke to her and denied making a loop behind the complainant's head. © The three individuals who witnessed the incident stated that when the respondent was told, “No, you can’t do that”, he seemed to “snap out of it” and said something along the lines of “that’s probably not a good idea” or “that wasn’t a good thing” as he put the rope back on the wall. (One witness thought the comment was made as he sat back down at the table.) © None of the three individuals who saw the incident with the rope on August 25 believed it ‘was the respondent’s misguided attempt to be humorous. The respondent and the complainant were not fiends or even collegial toward each other. The tension between the two has been more apparent since some of the respondents job duties were transferred to the complainant in 2016, © Avwitness who leamed of the incident after it occurred stated that the respondent likes to “intimidate people” and ‘jab at people and wait for a reaction”. This witness stated, ““Bven if it was (intended as) a joke, when would that ever be appropriate?” © Two witnesses that heard about the incident believe that the University should have reported the incident to DPS to be evaluated as a potential hate crime. 5Racial Harassment/Discrimination Finding Page 6 Several witnesses independently described the respondent profiling Black groups aitending or sponsoring events at the Bemmhard Center. The respondent consistently made disparaging comments referencing the Black groups only. Several witnesses believed that the respondent’s comments targeting Black sponsored events demonstrated that his concems were based on the race of the attendees, © Several witnesses heard the respondent complain that he hated when “those groups” were scheduled (referring to events with primarily Black attendees). AC different times and to different witnesses, the respondent characterized the Black groups as being problematic, a threat to the building, difficult to work with, rude and manipulative of the Bernhard Center processes. © He generalized that things were “likely to go wrong” with events by these groups, and the respondent was more likely to require metal detectors or a DPS presence for events primarily attended by Black individuals. © Referring to an event scheduled by an organization primarily attended by Black individuals, the respondent said to one witness, “Not my circus, not my monkeys”. The witness, a Black male, was offended by the “racist remark”, but let it go. Several witnesses confirmed that the respondent repeatedly made negative and demeaning remarks about the complainant's knowledge and ability to perform his job duties. The respondent made few overtly racist comments; however, the respondent’s language often held “double meaning” or racist implications. For example, the respondent would refer to the complainant as “your buddy” when criticizing the complainant to a witness who was also Black. The witness informed IE that he does not socialize with the complainant outside of ‘work. Therefore, the witness assumed the respondent referred to the complainant as his “buddy” because the complainant and the witness are both Black males. At least three witnesses stated that they were present at an operations meeting on August 9, 2017, when the respondent showed the complainant a photo of students removing items from the building. As he showed the picture to the complainant, the respondent said, “Look at these crazy Asians”. They bolieve this derogatory remark was intentionally directed at the complainant because the complainant's wife is Asian. One witness, a Black male, who worked with the respondent for over 25 years, recalled that when he first started working with the respondent, the respondent made a racist remark to him, At the time the comment was made, the witness told the respondent “you're a racist”. ‘The witness had not seen or heard the respondent exhibit any overtly racist behavior again, until the August 25, 2017, incident, (One witness stated that the respondent shared that he did not want a person of color “over him” and he did not like having to report to Vernon Payne, who served as interim-director of the Bernhard Center from March, 2010 through June, 2011 All witnesses were aware that the respondent did not like working with the complainant, nor with Black groups attending events at the Bernhard Center. In spite of this perception, two witnesses, both Black males, said they could work with the respondent with no problem prior to the “rope incident”. They both shared that the incident changed their perception of the respondent and they would rather not see or speak with him again. One stated “That's a lot of hate there” in reference to the incident. One stated that the incident had a significant effect on hhim and he is still affected by it. The other said that the incident did not affect him but he felt bad for the complainant.Racial Harassment/Discrimination Finding Page 7 + One witness recalled the respondent only hiring one Black student manager in the time he ‘worked with the respondent. The respondent had concerns about the student manager but told the witness he “couldn't fire him because of Vernon Payne”, which the witness understood to mean the respondent could not fire a Black student manager because Vernon Payne was Black and he either wouldn’t allow it or would be angry. ‘* All witnesses described the respondent losing his temper easily and often, Witnesses described the respondent yelling, pounding his fists on walls, kicking objects, and throwing staplers, tape dispensers or chairs. Most of the male witnesses stated that the behavior was fiequent, but not directed at them. They were used to it and could ignore it. Several witnesses described the respondent yelling, hitting walls and slamming doors when his anger was directed at female staff members. Two female witnesses were visibly upset while discussing the behavior, + The incident with the rope on August 25, 2017, has made some witnesses wonder what the respondent might be capable of and fear for their safety, Others expressed fear of the respondent due to repeatedly witnessing his emotional outbursts and his frequent discussions about his guns and gun rights + Many witnesses believe that the respondent was found to have a gun in his ear on campus several years ago. TB learned that, after receiving an anonymous report, DPS searched the respondent's vehicle and no gun was found; however, there is still a perception and concer for some of the Bernhard Center staf that the respondent was found with a gun on campus and there were no consequences. * The Bemhard Center management (Director and Assistant Director, Christopher Sligh) acknowledged that there has been tension between the respondent and the complainant for years. There have been attempts with management and HR to resolve the issue. With the complainant's agreement, the house staff was reassigned to the complainant so that, 1) the respondent and complainant would have less interactions, and 2) the complainant could get his job done without interference by the respondent, * Bernhard Center management acknowledged that the Diversity and Inclusion training was held largely as a result of allegations of racial profiling by the respondent. In addition, for two consecutive years, the Director requested the respondent to participate in the “Everyone Counts Learning Community” program put on by the Office of Diversity and Inclusion. The respondent did not comply with these requests. Investigative Report On October 9, 2017, the complainant was provided with a copy of the investigative report containing all of the evidence to be used to determine a finding. The complainant was provided an October 16, 2017 deadline to provide any additions or changes to his statement. To date, no changes or additions have been provided to TE. ‘The respondent elected not to participate in the investigation, Therefore, the respondent was informed that IE would proceed without the benefit of his input. ‘The respondent was not provided a copy of the investigative report,Racial Harassment/Discrimination Finding Page 8 Summary ‘The respondent worked for the University for over 38 years atthe time he retired on September 1, 2017. His performance evaluations revealed that the respondent had numerous supervisors over the years. Until his performance evaluation in 2016 by Bemhard Center Dircetor, Paul Terzino, the only suggestion that the respondent may have engaged in biased or racist behavior included suggestions to increase the diversity of the student employee group he supervised, ‘The respondent's behavior and attitude toward individuals and events held primarily by Black groups was described by the complainant and all witnesses. In 2016, an incident where the respondent primarily targeted Black groups to be called “to make sure they know the rules” was verbally addressed with the respondent by Paul Terzino. The respondent's 2016 performance evaluation following the targeting incident included a statement that the respondent was “challenged by diversity and inclusion issues in the office”, This statement was provided in the supervisor's overall comments; however, the respondent received a “meets expectations” as an overall rating for this evaluation. Itis clear that all individuals interviewed witnessed or experienced racially insensitive or overtly racist behavior by the respondent over the years which was not addressed. It is not clear whether the respondent's previous supervisors were told about or witnessed the behavior. The witnesses all described the respondent as having an explosive temper, and some expressed fear of him. This fear may have resulted in a hesitancy to notify supervisors of prohibited behavior. ‘There were 4 witnesses (including the complainan) to the August 25, 2017 incident in which the respondent held a looped rope behind the complainant's head suggestive of a noose. It was the perception of one witness that the respondent would have proceeded to put the rope around the complainant's neck if the witness did not tell him to stop. All witnesses were credible and consistent in their description of the incident. Beyond what was reported by the complainant, the investigation revealed that the respondent's behavior was intimidating at a level to create a hostile environment for others in the department, particularly impacting female employees, and warranting the attention of HR and management. Conclusion ‘The historical significance of the August 25, 2017 incident alone makes it an egregious act which resulted in a racially hostile work environment for the complainant. Further aggravating factors include: © Itis common knowledge that the complainant and the respondent had an adversarial working relationship. ©. The incident occurred prior to the start of a Diversity and Inclusion training session. © The Diversity and Inclusion training was scheduled largely as a result of the respondent's bbchavior and attitude toward events held by Black groups. Based on the above information, the respondent is found responsible for creating a hostile work environment for the complainant on the basis of race, in violation of the University’s Non- discrimination policy. 8