01991833
08-19-2002
Michael Robles, Glenn Hiranaka, Thomas Dore, Edward Ramirez, Complainants, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.
Michael Robles, Glenn Hiranaka, Thomas Dore, Edward Ramirez v. United
States Postal Service
01993974, 01991833, 01993973, 01993972
August 19, 2002
.
Michael Robles,
Glenn Hiranaka,
Thomas Dore,
Edward Ramirez,
Complainants,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal Nos. 01993974, 01991833, 01993973, 01993972
Agency Nos. 4F-926-1111-96, 1108-96, 1110-96, 1109-96
Hearing Nos. 340-97-3150x, 3151x, 3171x, 3148x
DECISION
Michael Robles, Glenn Hiranaka, Thomas Dore and Edward Ramirez
(complainants 1 - 4) timely initiated appeals from the agency's final
decision concerning their equal employment opportunity (EEO) complaints
of unlawful discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
The appeals are accepted pursuant to 29 C.F.R. � 1614.405 and, for the
sake of administrative economy, consolidated. Complainants allege that
they were discriminated against on the basis of sex (male) when they
were disciplined for alleged sexual harassment of a female employee.
Complainants 1 and 3 also allege that this discipline was motivated by
their prior protected EEO activity (unspecified).
For the following reasons, the Commission REVERSES the agency's final
decision.
The record reveals that complainants, letter carriers at the agency's
Upland, California postal facility, filed formal EEO complaints
with the agency on March 28, 1996 (complainants 1 and 2), April 1,
1996 (complainant 3), and March 29, 1996 (complainant 4) alleging
that the agency had discriminated against them as referenced above.
At the conclusion of the investigations, complainants received a copy
of the investigative report and each requested a hearing before an
EEOC Administrative Judge (AJ). The complaints were consolidated for
hearing and, following the hearing, the AJ issued a decision finding
that complainants 1 and 3 were not subjected to retaliation, but that
all four complainants were subjected to sex discrimination.
The AJ concluded that complainants established a prima facie case of
sex discrimination because sexual bantering and innuendo was common
among all employees of their unit, male and female, and was known to
the supervisors, but only complainants were disciplined. The AJ also
noted that the investigation into the female employee's (FE) accusation
of sexual harassment was not even-handed and that complainants were not
treated the same as FE during the investigation.
The AJ then concluded that the agency failed to articulate a legitimate
non-discriminatory reason for disciplining complainants. While the
agency argued that complainants were disciplined after an investigation
into FE's claims of sexual harassment revealed that complainants had
behaved contrary to the agency's anti-harassment policy, the AJ found
that this was not a sufficient articulation. The AJ noted that a Labor
Relations Specialist (LS) who was involved in investigating FE's claim
was �clearly operating on a stereotypical view of women,� finding that he
believed FE was upset and embarrassed about the sexual discussions that
took place in the workplace. The AJ determined that LS's stereotyped
view prevented him from conducting an adequate investigation. The AJ
also noted that both LS and the other management official involved in the
investigation (OIC) were aware that FE �misrepresented or exaggerated�
relevant information relating to her sexual harassment report, yet did
not seek further information with regard to corroboration or credibility.
From these findings, the AJ concluded that the agency failed to articulate
a legitimate non-discriminatory reason for its actions.
The AJ then concluded that even assuming the agency articulated a
legitimate non-discriminatory reason for its actions, complainants
established that the reason was a pretext for sex discrimination.
In supporting this finding, the AJ again pointed to FE's lack of
credibility, noting that it was clear that FE lied about certain matters,
while there was no indication that complainants lied. The AJ also noted
that very severe discipline was imposed on complainants and that had
a �fair investigation� taken place, complainants would not have been
disciplined for sexual harassment.
The AJ found that complainants 1 and 3 were not subjected to retaliation,
noting that neither LS nor OIC were aware of complainants' prior EEO
activity.
The AJ went on to recommend a remedy for the agency's discriminatory
behavior.
The agency's final decision adopted the AJ's finding of no retaliation,
but concluded that complainants were not subjected to sex discrimination.
In so finding, the agency noted that when OIC became aware of FE's
allegations of harassment, he contacted the District Labor Relations
office for guidance and, subsequently, conducted an investigation.
The agency stated that this investigation was based on written and oral
testimony from the employees in FE's unit. OIC selectively interviewed
employees in the office, concentrating on those named by FE and those
in close proximity to the area in which FE worked. After the initial
interviews, FE provided more specific information about her allegations,
leading to a second interview of complainants and their supervisors.
The agency found that OIC followed agency guidelines on investigating
claims of harassment and conducted a fair and impartial investigation.
The agency noted that the AJ had no evidence on which to base her
conclusion that LS was operating under a stereotypical view of woman or
that the investigation was biased due to his participation. The agency
concluded that the discipline was issued based on a fair and impartial
investigation and according to agency guidelines on harassment.
On appeal, complainants essentially restate arguments previously made at
the hearing. Complainants ask that the AJ's recommendations be upheld
and that the agency be required to issue new harassment guidelines,
such that investigations do not treat males less favorably than females.
In response, the agency restates the position it took in its FAD, and
requests that we affirm its final decision.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
As an initial matter, we note that complainants' joint appeal statement
requests that the AJ's decision be upheld and does not request that the
Commission reverse the FAD's determination to adopt the AJ's finding that
complainants 1 and 3 were not subjected to retaliation. Accordingly,
the retaliation claims will not be addressed in this decision.
Turning to complainant's claims of sex discrimination, the Commission
finds that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. The AJ's
determination that complainants were subjected to sex discrimination is
supported by substantial evidence. In so finding, we note that the AJ
determined that LS, one of the officials responsible for conducting the
investigation into FE's claims of sexual harassment, was operating under
a stereotypical view of women which caused him to believe FE when she
claimed to have been upset and embarrassed about the sexual discussions
that took place in the workplace. The AJ determined that LS's biased
views prevented him from conducting an adequate investigation, noting
that LS was aware that FE exaggerated and/or misrepresented information
relevant to her claims of sexual harassment, but did not seek further
information in regard to her credibility. These factual findings are
supported by substantial evidence in that LS himself testified that
he believed FE was upset and embarrassed by the sexual discussions
that took place, despite his awareness that she misrepresented and
exaggerated relevant facts. Moreover, LS acknowledged that he did not
seek adequate corroboration of FE's claims or check into controverting
evidence offered by complainants before determining that complainants
were guilty of sexual harassment.
Accordingly, we discern no reason to disturb the AJ's finding that
complainants were subjected to sex-based discrimination when they were
disciplined for the alleged sexual harassment of FE. The agency's
finding to the contrary is therefore REVERSED and this matter REMANDED
for further processing.
As a final matter, we note that the Commission, in a Guidance published
after the issuance of the Supreme Court's opinions in the sexual
harassment cases of Burlington Industries, Inc. v. Ellerth, 524 U.S. 742
(1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), suggests
that agencies establish, disseminate and enforce an anti-harassment
policy and complaint procedure and take other reasonable steps to prevent
and correct harassment. See Enforcement Guidance: Vicarious Employer
Liability for Unlawful Harassment by Supervisors (Vicarious Liability),
No. 915.002 (June 18, 1999). In this Guidance, the Commission addresses
the situation at hand, in which accused harassers claim that discipline
they received through an internal harassment procedure was discriminatory.
The Guidance notes the Commission will not find pretext based solely on an
after-the-fact conclusion that the disciplinary action is inappropriate.
Where the accused harasser claims that the disciplinary action was
discriminatory, �the real issue is whether the employer reasonably
believed the employee's allegation [of harassment] and acted on it in
good faith, or to the contrary, the employer did not actually believe the
co-employee's allegation but instead used it as a pretext for an otherwise
discriminatory dismissal.� See Vicarious Liability, fn. 71, quoting
Waggonner v. City of Garland Tex., 987 F.2d 1160, 1165 (5th Cir. 1993).
The decision herein does not contradict this Guidance. The AJ's finding
of discrimination is not based solely on an after-the-fact conclusion that
discipline was inappropriate. Rather, the finding of discrimination is
based on the fact that one of the officials involved in investigating FE's
claims held a biased view of women which predisposed him to believe FE's
version of events rather than complainants, despite evidence that she was
exaggerating and misrepresenting relevant events. As such, the agency's
decision to believe FE's allegations was not reasonable. We remind
the agency that if it conducts an adequate and unbiased investigation
into an employee's claim of sexual harassment and determines in good
faith that discipline is warranted, the Commission will not find that
decision to be discriminatory based solely on a determination that the
discipline was inappropriate.
ORDER
The agency is ordered to take the following remedial action:
Within thirty (30) calendar days of the date this decision becomes
final, the agency shall rescind any disciplinary action taken against
complainants due to its finding that they sexually harassed FE.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainants, pursuant to
29 C.F.R. � 1614.501, no later than sixty (60) calendar days after the
date this decision becomes final. Complainant shall cooperate in the
agency's efforts to compute the amount of back pay and benefits due,
and shall provide all relevant information requested by the agency.
If there is a dispute regarding the exact amount of back pay and/or
benefits, the agency shall issue a check to each complainant for the
undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. Complainant may
petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
Within thirty (30) calendar days of the date this decision becomes
final, the agency shall expunge from all agency records any mention
that complainants were found to have sexually harassed FE.
Within sixty (60) calendar days of the date this decision becomes final,
the agency shall provide at least 8 hours of training in EEO law to
all supervisors and managers at the Upland, California facility who
are responsible for conducting internal harassment investigations,
including LS and OIC.
The agency shall post the attached notice.
The issues of compensatory damages and attorney's fees and costs are
REMANDED to the Hearings Unit of the Los Angeles District office.
Thereafter, the Administrative Judge shall issue a decision on these
issues in accordance with 29 C.F.R. � 1614.109, and the agency shall
issue a final action in accordance with 29 C.F.R. � 1614.110 within forty
(40) days of receipt of the Administrative Judge's decision. The agency
shall submit copies of the Administrative Judge's decision and the final
agency action to the Compliance Officer at the address set forth below.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of backpay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Upland, California facility copies
of the attached notice. Copies of the notice, after being signed by the
agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant in
the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to
file a civil action. Both the request and the civil action must be
filed within the time limits as stated in the paragraph above ("Right
to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 19, 2002
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that
a violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq., has occurred at the United States Postal
Service, Upland, California facility (facility).
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privileges of employment.
The facility supports and will comply with such federal law and will
not take action against individuals because they have exercised their
rights under law.
The facility was found to have discriminated on the basis of sex when it
disciplined four employees based on a biased investigation into a claim
that they had sexually harassed a co-worker. The facility was ordered
to: (1) rescind the disciplinary actions; (2) pay the appropriate amount
of back pay and benefits; (3) expunge mention of the disciplinary actions
from all agency records; (4) provide EEO training to the supervisors
and managers at the facility who are responsible for conducting internal
harassment investigations; (5) and post this notice. The issues of
complainants' entitlement to compensatory damages and attorney's fees
and costs were remanded to an EEOC Administrative Judge.
The facility will not in any manner restrain, interfere, coerce, or
retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, federal equal employment opportunity law.
Date Posted:
Posting Expires:
29 C.F.R. Part 1614