01994179
08-15-2002
Ruby Harmon, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Eastern Area), Agency.
Ruby Harmon v. United States Postal Service
01994179
August 15, 2002
.
Ruby Harmon,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 01994179
Agency Nos. 1D-297-1023-94; 1D-297-1012-95;
1D-297-1021-95; and 1D-297-1019-95
Hearing Nos. 110-95-8242X; 140-96-8028X;
140-96-8102X; and 140-96-8115X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and
the Age Discrimination in Employment Act of 1967 (ADEA)<1>, as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. Complainant alleges she was discriminated against as follows:
Complaint No. 1 (Agency No. 1D-297-1023-94): Complainant alleges that
she was discriminated against on the bases of her race (Black), and sex
(female) when on or about September 1, 1994, she was issued a Letter of
Warning (LOW) for �failure to perform the duties of her position.�
Complaint No. 2 (Agency No. 1D-297-1012-95): Complainant alleges that
she was discriminated against on the bases of her race (Black), color
(black), sex (female), national origin (African-American), and retaliation
(prior EEO activity)<2> when, on or about January
5, 1995, she was moved to another area of supervision and thereby was
denied an opportunity to work in all phases of the mail processing
operation.
Complaint No. 3 (Agency No. 1D-297-1019-95): Complainant alleges that she
was discriminated against on the bases of race (Black), color (black),
sex (female), and retaliation (prior EEO activity) when she was harassed
when, on or around July 7, 1995, she received a LOW on a charge of being
irregular in attendance.<3>
Complaint No. 4 (Agency No. 1D-297-1021-95): Complainant alleges that she
was discriminated against on the bases of race (Black), sex (female),
and retaliation (prior EEO activity) when she was harassed when on or
around January 24, 1995, she was denied the opportunity to attend Remote
Bar Code Sorter (RBCS) and Leadership training.
Sexual Harassment Claim: Complainant alleges that she was the subject
of unwelcome sexual harassment from her direct supervisor (RMO) (male,
Black) from August, 1993 through September, 1995.<4>
For the following reasons, the Commission AFFIRMS the agency's final
decision, in part and REVERSES, in part.
The record reveals that complainant, a Supervisor at the agency's
Greenville, South Carolina facility, filed formal EEO complaints with the
agency on November 1, 1994, March 9, 1995, September 6, 1995, September
25, 1995, alleging that the agency had discriminated against her as
referenced above.<5>
At the conclusion of the investigations on Complaints 1-4, complainant was
provided a copy of the investigative reports and she requested a hearing
before an EEOC Administrative Judge (AJ). The AJ consolidated all four
complaints and included complainant's allegation of sexual harassment at
the hearing. Following a hearing, the AJ issued a decision finding no
discrimination with respect to Complaints 1-4, but found that complainant
was subjected to a hostile work environment due to sexual harassment.
With respect to Complaint No. 1, the AJ determined that complainant failed
to establish a prima facie case of race or sex discrimination. The AJ
noted that complainant failed to identify similarly situated employees not
in her protected groups who were treated more favorably. Specifically,
the AJ noted that complainant had not presented any situation of any
person who allegedly did not complete the proper paperwork, completed
the wrong paperwork or otherwise had ministerial duties associated with
or surrounding the execution of discipline who was treated more favorably
than she was. With respect to the issue of failing to submit an article
for the �Express It� newsletter, the AJ noted that complainant failed
to provide �a shred of evidence to refute the agency's claim that this
is a rotated function that is performed by all supervisors ... black,
white, female, male.� Regarding the issue noted in the LOW concerning
complainant's �alleged failure to properly monitor or supervise her
employees ... ,� the AJ concluded that complainant failed to show that she
was treated less favorably than similarly situated employees not of her
protected groups. The AJ noted that while the comparison employee (C1)
(White, male) identified by complainant was known to be away from his
area of supervision, there was no evidence that his staff was disruptive
on the workroom floor. In addition, the AJ noted that the evidence shows
that the responsible officials for the LOW (i.e., the Plant Manager (PM)
(Black, Female) and RMO) were aware of C1's behavior and its effects on
the work place. In addition, the AJ noted that the alleged responsible
management officials were all of the same race as complainant, and two
were female.
With respect to Complaint No. 2, the AJ concluded that complainant had
failed to establish a prima facie case of race, color, sex and national
origin discrimination because she had failed to provide credible evidence
that persons not of her protected groups were treated more favorably.
The AJ noted that other supervisors were reassigned during the same time
period to other functional areas and these supervisors were both within
and outside complainant's protected groups. The AJ determined that
complainant established a prima facie case of retaliation and the agency
had articulated a legitimate non-discriminatory reason for its action.
The agency articulated through testimony of several witnesses that it
had been concerned about complainant's ability to manage the Flats area
and that the Manual area required less supervision. The AJ was not
persuaded by complainant's efforts to show pretext. In addition, the
AJ determined that a preponderance of the evidence did not establish a
sufficient nexus between the change and complainant's prior EEO activity.
With respect to Complaint No. 3, the AJ determined that complainant
established a prima facie case of age, race, color, national origin,
and sex discrimination. Specifically, the AJ found that complainant's
record of tardiness and absenteeism was not greater than C1. The AJ
also determined that complainant established a prima facie case of
retaliation in that complainant participated in prior EEO activity,
that the activity had been known to RMO, complainant was adversely
affected by an employment action, and that the closeness in time between
the action and complainant's prior EEO activity was close enough that
there was a connection between the two. The AJ also determined that
the agency articulated a legitimate, non-discriminatory reason that
indicated complainant's leave record showed a pattern of abuse. The AJ
found that complainant failed to establish that the agency's reasons
were pretextual. While complainant claimed that RMO was out to get
her because of her �New York style of management,� the AJ found that
insufficient evidence of pretext. In addition, the AJ found that the
agency treated unscheduled leave in a consistent manner and acted to
correct the leave use patterns by issuing LOWs to its employees.
With respect to Complaint No. 4, the AJ determined that complainant
established a prima facie case of race, color, and sex discrimination.
The AJ also concluded that complainant established a prima facie case
of retaliation. The AJ noted that while individuals of complainant's
protected groups were allowed to attend the training, similarly situated
employees not of complainant's protected groups were also allowed to
attend. The AJ noted that PM articulated that when the training was
announced billets were not available for all eligible individuals to
attend. All those chosen to attend were those whose operations directly
related to the automation function and complainant's function did not
fall within this parameter. Furthermore, the AJ noted that PM testified
that by the time complainant would have been selected for such training,
she had a record of discipline and thereafter was under consideration for
removal from the agency and had been reduced to craft employee status.
The AJ found that complainant failed to rebut the specific reasons
articulated by the agency for its failure to select complainant for
training and complainant failed to prove, by a preponderance of the
evidence, that the agency's actions were motivated by discrimination or
retaliation. Specifically, the AJ noted that the record evidence shows
that a whole range of Black and White, male and female, supervisors
went to one or both of the training courses. While C1 had attendance
problems and still was sent to training, the AJ did not find C1 similarly
situated to complainant in that C1 did not have performance problems,
nor was he reduced to a craft employee.
With respect to the sexual harassment claim, the AJ noted the following.
Complainant testified that from the time she first transferred to the
agency from New York in August 1993, RMO displayed behavior which was
sexually suggestive and flirtatious. According to complainant, examples
of RMO's offensive and intimidating conduct, which were sexually repugnant
and degrading, included the following: (1) RMO would look her up and
down, suggestively and state, �um, you look good today.� According to
complainant, the manner in which he said it transformed it into more
than a compliment; (2) RMO would ask complainant if she had a man to
help her in the house. The manner in which he said it was such that
the complainant took offense; (3) RMO questioned complainant about
when her husband would be joining her in Greenville, South Carolina.
Specifically RMO asked her �do you miss a man?� When she challenged
the comment by asking him what he meant he responded, �well, you
know what I mean;� (4) In the middle of a staff meeting, RMO stopped
whatever discussion or presentation was going on, looked over to where
complainant was located and stated, �Gee [complainant], I must say, your
hair looks absolutely simply gorgeous.� This commentary and the context
in which it was delivered shocked complainant; (5) RMO keeps a candy
jar in his office to which supervisors are known to help themselves.
Complainant, thinking RMO was not in his office, entered his office to
get a piece of candy. Realizing he was in, she asked if she might have
a piece of candy. RMO, leaning back in his swivel chair with his leg
propped up stated, �you can have anything in this room that you want -
and I mean anything.� Complainant took that to mean she could have him
too and that offended and angered her; (6) Consistent with his practice
of buying a cake for each of his supervisors on their birthday, RMO did
this for complainant. In a staff meeting he wished her happy birthday.
She found that to be okay. However, after the meeting, RMO called her
aside in private, smiled and stated �... I just had to wish you, extend
to you a personal, and I do mean personal, happy birthday.� �I hope you
got everything that you wanted and if you didn't I'll take care of it.�
According to complainant, RMO stated this in a suggestive manner.
In addition, complainant testified that she spoke to her sister (SS)
in New York over the telephone about her feelings that RMO was sexually
harassing her contemporaneously with the events unfolding. In addition,
complainant testified that she spoke with another supervisor (S1)
(Black, female) about the events as well.<6> In addition to events
testified to by complainant, SS testified about additional incidents
relayed to her by complainant. In one incident, RMO saw complainant
with a lollipop she was sucking on. RMO asked complainant if he could
have a lollipop. Complainant stated yes and offered him one from
her pocket. RMO then stated he did not want the wrapped one offered
from her pocket, exclaiming �No, no, no, I don't want that one ... I
want the one that's in your mouth.� Complainant reported to SS that he
stated this suggestively while looking at her �in an elevator fashion -
up and down.� This annoyed complainant. At another point according to
SS, complainant informed her that she confronted RMO and told him she
did not appreciate him inquiring into her personal life. He allegedly
responded, �I was wondering when you were going to come down here.� At
that point complainant allegedly responded �Well, you need to stop it.�
�I'm here to do my job, you need to stop it.� RMO persisted with the
retort, �You know [complainant], I love you.� Complainant replied: �No,
no, no you don't love me. I don't love you. I love my husband.� With
that RMO modified his comment. He told complainant, �Oh, no, no, no.
I don't mean that. I mean like a brother.� Complainant still upset,
allegedly ended the matter with the statement, �no, I don't love you
like a brother, and you need to stop it.�
RMO denies having sexually harassed complainant or any other employee.
He does admit that he was aware of rumors circulating in the post
office about his alleged trysts or involvements with certain employees.
According to RMO, they were just rumors and he ignored them. RMO further
denied that complainant approached him on behalf of an employee's
complaint that he was sexually harassing her.
PM testified that complainant was the only employee to raise a claim
of sexual harassment against RMO but that she did not complain until
after her proposed removal in October, 1995. According to PM, after
being notified of complainant's allegations of sexual harassment,
she immediately ordered an investigation into the claim. Further, PM
denies having any knowledge of rumors of sexual liaisons and behavior
involving RMO. PM asserts that the agency has a strong policy against
sex harassment. PM argues that she took swift and appropriate action
in the past when claims of sexual harassment had been raised.
The AJ concluded that complainant established a prima facie case of
unlawful sex discrimination based upon sexual harassment. Specifically,
the AJ concluded that complainant has shown, through her own testimony,
her contemporary complaints to S1 and SS, both of whom the AJ found
to be credible, and the testimony of at least four other women who all
testified that RMO sexually harassed them personally, that complainant
was subjected to unwelcome (verbal) conduct of a sexual nature by RMO,
the agency's Manager of Distribution Operations. In addition, the AJ
found that complainant's evidence shows that the conduct visited upon
her by RMO was based upon her sex, in the sense that the facts and
circumstances surrounding the conduct, the context of the conduct and
the nature of the conduct, show that but for sex (female), such conduct
would not have been visited upon her. Lastly, based upon complainant's
testimony as to how RMO's conduct caused her personal anguish and mental
distress, caused increased stress in the performance of her duties,
caused her rapid weight gain, and produced anger and resentment in
her dealings with her supervisor and manager, the AJ concluded that the
conduct had the effect of, and in fact did unreasonably interfere with the
complainant's work performance. The AJ also relied upon the testimony
of a few other women who testified that they were sexually harassed.
While the agency attempted to impeach the testimony of two of these women
by showing that they were not credible because their contracts as casual
clerks were not renewed, the AJ found that the failure to be renewed as
casuals did not appear to be such a sore point with either individual
as to engender an ongoing bias several years later. The AJ also found
that the overall consistency of the various individuals with respect
to the overall pattern of behavior as opposed to a rehearsed pattern
recitation of specifics (as the specifics varied widely) gave credence
to the character of the individual about whom they spoke. In addition,
the AJ found the demeanor of the witnesses to be consistent with an
indicia of credibility. The AJ noted that witnesses appeared sincere
wherein one or two of the witnesses allowed that the conduct happened
but felt that it was not personally offensive for them.
On the other hand, the AJ did not find RMO to be credible. According
to the AJ, RMO had a glib attitude, and even approached being smug in
his responses. According to the AJ, RMO portrayed the image of one
attempting to show himself as being victimized for reasons that only
could be explained by recognizing that some folks are ungrateful and
downright mean to those who attempt
to befriend them. According to the AJ, this appeared to be a rehearsed
or calculated �defense� that the witness set about to portray in an
effort to explain the otherwise unexplainable.
The AJ did note that there was a tremendous amount of gossiping going
around the agency and that a substantial amount of the testimony dealt
with unsubstantiated rumors. To clarify the record and to ensure that
the AJ did not rely on those rumors in reaching his conclusions, he set
out those facts that were not established. Specifically, the AJ stated
that he saw no specific evidence which established that submission to
RMO's sexual conduct was made an explicit or implicit term or condition of
employment at the agency. The AJ also found no evidence that any of the
specific acts complained of in Complaints 1-4 was visited upon complainant
because she spurned RMO's sexual conduct. In addition, the AJ noted that
rumors and gossip do not form the basis for, and are not the basis for,
a successful showing of unlawful sex discrimination. Therefore, the fact
that RMO was alleged to have had children with members of management or
with members of the craft employee complement, or had sexual relations
with such individuals, did not play a role in his finding.
The AJ found the conduct by RMO wide-spread and unrelenting as it
related to complainant and others. The AJ also noted that he considered
the numerous witnesses brought forth by the agency to say that RMO,
in their estimation, is a perfect gentleman. The AJ noted that he
weighed all the evidence presented by the agency, but nevertheless
concluded that unlawful and unwarranted conduct of a sexual nature,
which had the purpose or effect of creating a hostile and intimidating
work atmosphere, and or had the effect of unreasonably interfering with
complainant's ability to perform her work took place at this facility.
With respect to whether the agency was on notice of the sexual harassment,
the AJ determined based on the evidence that at least once during the
months of unlawful conduct, complainant put RMO on notice that his conduct
was improper. In addition, while the AJ found no clear showing that PM
(RMO's supervisor) was on notice of or was warned of sexually harassing
conduct in this case, he did not find PM's testimony credible that she
was not aware of the rumors that were admittedly circulating about RMO
and his alleged escapades, trysts and liaisons. Therefore, while the
rumors could not form the basis for a successful sexual harassment claim,
the toleration of such improprieties by management, with no effort to
qualm, quell or rid the workplace of them substantiates the claim that
complainant and others reasonably felt it would be futile to complain
to higher ups. The AJ determined that the evidence established that
employees could reasonably conclude that complaining would be futile in
that the rank and station of the individual involved made a difference
to the agency in how it would address or not address their claims.
Accordingly, the AJ concluded that the agency was sufficiently on notice
that it would be liable for the reasonable and foreseeable consequences
of sexually harassing conduct by an official of RMO's rank and station.
In addition to other remedies, the AJ awarded complainant compensatory
damages. Specifically, the AJ noted that complainant testified that she
suffered mental anguish, additional work stress, recurring anger, anxiety
relating to her ability to care for her children should she pursue this
matter, lack of faith in and respect for the system, rapid weight gain,
humiliation, embarrassment and distress associated with the sexual
harassment she experienced. The AJ also noted that the record shows
that a number of stressors and events were going on in complainant's
life such that it is not clear to what extent job related issues not
associated with sexual harassment, impacted her distress. In view of
the lack of clarity as to what percentage of complainant's problems can
be associated with the sexual harassment in relation to other events,
the AJ concluded that complainant was entitled compensatory damages in
the amount of $10,000.00.
The agency's final decision rejected the AJ's decision with respect
to the sexual harassment finding but implemented the remainder of the
AJ's decision. In final decision, the agency argues that the AJ erred
in hearing the allegations of sexual harassment at the hearing, but
rather should have remanded the allegation to the agency for further
processing since no formal EEO complaint had ever been filed on the
sexual harassment issue. In addition, the agency argues that the AJ
erred when he found that complainant established a prima facie case of
sexual harassment. Specifically, the agency argues that complainant did
not establish that she was subjected to unwelcome conduct. The agency
argues that the record is devoid of evidence that would establish
that complainant communicated to RMO her feelings that his conduct
was regarded as undesirable. The agency also notes that no witnesses
observed the alleged sexual conduct toward complainant. The agency also
argues that there was not one single witness who witnessed complainant's
reactions to RMO's conduct. The agency also argues that complainant
failed to establish that the harassment complained of affected a term or
condition of employment, and/or had the purpose or effect of unreasonably
interfering with complainant's work environment. The agency argues,
inter alia, that complainant noted only four incidents of sexual conduct
over a two-year period, which did not amount to discriminatory harassment.
The agency also argued that the weight of the evidence does not support
the AJ's credibility findings. Specifically, the agency argues that
the fact that complainant did not raise sexual harassment until after
her notice of removal (even though she had several pending EEO matters)
indicates that she manufactured the claim to stop the disciplinary
action from taking effect. In addition, the agency points out that
complainant testified at one point that she was advised by SS not
to pursue her sexual harassment claims and at another point that she
attempted to raise the issue with an EEO counselor but was discouraged.
In addition, the agency points out that complainant asserts that she
was not aware that RMO's behavior amounted to sexual harassment until
she attended sexual harassment training in 1995. However, the agency
notes complainant's testimony where she states that she had advised
an employee that she was sexually harassed by RMO in February 1994.
The agency also finds the AJ's credibility determination with respect
to S1 erroneous because S1 was disciplined by RMO and S1 and had a
motive to lie. In addition, the agency noted that S1's testimony was
substantially limited to hearsay testimony. The agency also finds that
the AJ's credibility determination with respect to SS erroneous due to
the fact that SS could not give specific dates when complainant may have
communicated instances to her of being sexually harassed. Furthermore
the agency notes that SS testified that she had no direct knowledge
of the incidents of harassment except from what complainant told her.
The agency also argued that the AJ erred when he relied on testimony
from two individuals who allegedly were sexually harassed themselves.
The agency argues that the individuals had an axe to grind against RMO
and they were out to get him.
The agency also argues that the AJ erred when it found that liability
should be imputed to the agency. Specifically, the agency argues that
the record is replete with evidence that complainant never complained
of any unwelcome conduct by RMO until after her notice of removal.
The agency also argues that the remedy is not proper since complainant
has not established discrimination or reprisal.
In her appellate brief, complainant contends, inter alia, that there was
no objective evidence presented that White employees were disciplined by
Black supervisors. Complainant notes that S1 recommended disciplining
a White employee, however such recommendation only occurred in 1996.
Furthermore, while another Black supervisor (S2) recommended disciplining
a White employee, her recommendation was subsequently overturned during
the grievance process. With respect to the issue regarding the article
for �Express It,� complainant argues that pretext was shown by the
fact that RMO refused to meet with her to discuss her side of the story.
Complainant also argues that it is improbable that PM or any other manager
did not witness C1's staff being loud or disruptive. Complainant notes
the letter issued in May 1994 from PM to all supervisors and managers
reminding them of their responsibility to oversee and monitor their
operation at all times and indicating that many employees are not
conducting themselves appropriately. Complainant asserts that this
letter shows that PM had problems with other supervisors in addition
to complainant, yet complainant was the only supervisor disciplined.
Complainant also argues that she was never advised prior to the LOW
that her performance was poor. Accordingly, she asserts that her poor
performance is clearly a pretext for issuing the LOW.
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).
After a careful review of the record, the Commission finds that the AJ's
decision summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. Complainant argues on appeal that
there is no documentary evidence in support of the agency's assertion
that Black supervisors were permitted to discipline White employees.
While there is no documentary evidence in the record to corroborate
the agency's position, the record is replete with witness testimony
to substantiate this claim. We also note that complainant has failed
to present evidence showing the witness testimony to be unreliable
or disingenuous. Accordingly, we find no reason to reverse the AJ's
findings on this issue.
Complainant also argues on appeal that RMO's failure to meet with her
to hear her side of the story with respect to the failure to submit the
article for �Express It� in a timely fashion, indicates pretext. We do
not find this argument persuasive. We agree with the AJ that complainant
failed to attack the agency's reasons for raising complainant's failure
to timely submit the article in the LOW. Complainant confirmed that she
did not submit the article in a timely fashion. Moreover, we find no
evidence that other similarly situated individuals outside complainant's
protected classes were treated more favorably.
Complainant also argues on appeal that in May 1994, PM issued a letter to
all supervisors reminding them of their responsibilities to monitor and
supervise their units. Complainant argues that this letter is convincing
evidence that PM was bothered by other supervisors' lack of control over
their staff as well. Accordingly, complainant argues, she was singled
out for discipline. We disagree with complainant. We do not find the
letter convincing proof that other supervisors' units were disturbing
PM to the extent that complainant's unit was disturbing her. Moreover,
without more, we find the letter insufficient proof that PM was aware that
any other unit was causing disturbances. Complainant also argues that,
prior to the issuance of the LOW, she was never told that her performance
was poor. We disagree with complainant's assessment of the record.
The record indicates that complainant was told on different occasions
that she needed to have more control over her staff. In addition, we
find no evidence in the record that it was a practice among managers to
issue verbal warnings to the supervisors before issuing LOWs, or that
similarly situated employees outside complainant's protected classes were
treated more favorably. Accordingly, we find complainant's arguments
unpersuasive.<7>
In addition, to the extent that complainant raised a harassment claim
related to Complaints 1-4, we find that complainant failed to prove that
a hostile work environment existed. Harassment of an employee that would
not occur but for the employee's race, color, sex, national origin, age,
disability, or religion is unlawful. McKinney v. Dole, 765 F.2d 1129,
1138-1139 (D.C. Cir. 1985). A single incident or group of isolated
incidents will not be regarded as discriminatory harassment unless the
conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th
Cir. 1982). Whether the harassment is sufficiently severe to trigger a
violation of Title VII [and the ADEA] must be determined by looking at all
the circumstances, including the frequency of the discriminatory conduct,
its severity, whether it is physically threatening or humiliating, or
a mere offensive utterance, and whether it unreasonably interferes with
an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17
(1993). We find substantial evidence in the record to support the
finding that the employment actions which complainant alleges created
a hostile work environment were legitimate employment decisions which
did not unreasonably interfere with complainant's work performance.
Accordingly, we find that complainant failed to prove, by a preponderance
of the evidence, that she was subjected to a hostile work environment
with respect to Complaints 1-4.
With respect to the sexual harassment claim, we find the agency's
arguments unpersuasive. As discussed above, we find the issue properly
before the Commission on appeal. See Footnote 4, supra. While the agency
argues that the record is devoid of evidence which could establish that
complainant was subjected to unwelcome conduct, we disagree. Complainant
testified that the conduct was unwelcome. In addition, complainant's
sister confirmed that complainant complained about the conduct and that
complainant found it offensive. The record is sufficient to find that
complainant complained to RMO about his conduct on at least one occasion.
Contrary to the agency's arguments, there is testimony from S1 stating
that complainant was offended when RMO told her that her hair looked
absolutely gorgeous during a staff meeting. The agency also argues that
four incidents of sexual harassment is not sufficient to rise to the level
of unreasonably interfering with complainant's work environment. First,
we disagree with the agency characterization that only four incidents
were established by the evidence of record. Complainant testified to
six specific incidents, but also testified that incidents of a similar
nature occurred on a weekly basis (i.e., approximately 3 to 4 times per
month). In addition, complainant's sister testified that complainant
also complained of incidents of sexual harassment and described at least
two additional instances of sexual harassment.
We find the agency's arguments regarding the AJ's credibility assessments
unpersuasive. While complainant's testimony explaining why she waited
until October 1995 to raise her sexual harassment claim was somewhat
inconsistent, such inconsistency does not necessitate a finding that she
was not credible in her testimony regarding the sexual harassment. We
find that the AJ clearly justified his credibility findings and we do
not find any compelling reason to disregard them.
The agency also argues that liability should not be imputed to the
agency because there is insufficient evidence that complainant ever
complained of any unwelcome conduct to management. When harassment
by a supervisor creates an unlawful hostile environment but does
not result in a tangible employment action, the agency can raise an
affirmative defense to liability or damages, which it must prove by a
preponderance of the evidence, by showing that (1) the agency exercised
reasonable care to prevent and correct promptly any harassment; and (2)
the employee unreasonably failed to take advantage of any preventative or
corrective opportunities provided by the agency to otherwise avoid harm.
See Enforcement Guidance: Vicarious Employer Liability for Unlawful
Harassment by Supervisors, EEOC No. 915.002, p. 12 (June 18, 1999).
Moreover, an agency cannot establish the second prong of the defense
on the employee's failure to complain if that failure was based on
a reasonable belief that the process was ineffective. Id. at p. 32.
Even assuming that the evidence of record does not support the AJ's
finding that complainant complained to management, we find that the record
does support the AJ's finding that it was reasonable for complainant to
believe that complaining to PM or others would be futile. The evidence
shows widespread rumors regarding RMO's offensive sexual conduct.
We agree with the AJ's conclusions that PM was aware of the rumors.
In addition, the record shows that nothing was done to address the
rumors or to address the conduct. The record evidence shows that it was
reasonable for the Supervisors to believe that Managers are permitted
to engage in sexual harassment. Accordingly, we agree with the AJ
in finding that the second prong of the agency's defense was not met.
We find sufficient evidence in the record to support the AJ's finding
that liability can be imputed to the agency based on the evidence in
the record.
We discern no basis to disturb the AJ's decision. Therefore, after a
careful review of the record, including the agency's arguments on appeal,
complainant's response, and arguments and evidence not specifically
discussed in this decision, the Commission reverses the agency's final
decision and directs the agency to take remedial actions in accordance
with this decision and the Order below.
Compensatory Damages:
There are no definitive rules governing the amount of non-pecuniary
damages to be awarded. However, non-pecuniary damages must be limited
to the sums necessary to compensate the injured party for actual harm,
even where the harm is intangible, See Carter v. Duncan - Higgins, Ltd.,
727 F.2d 1225 (D.C. Cir. 1984), and should take into account the severity
of the harm and the length of time that the injured party has suffered
the harm. Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652
(July 17, 1995). Non-pecuniary and future pecuniary damages are limited
to an amount of $300,000.00. The Commission notes that for a proper
award of non-pecuniary damages, the amount of the award should not be
"monstrously excessive" standing alone, should not be the product of
passion or prejudice, and should be consistent with the amount awarded
in similar cases. See Damiano v United States Postal Service, EEOC
Request No. 05980311 (February 26, 1999); Ward - Jenkins v. Department
of the Interior, EEOC Appeal No. 01961483 (March 4, 1999) (citing Cygnar
v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989)).
Applying this legal standard, we disagree with the AJ's $10,000 award
for complainant's non-pecuniary damages in this matter. The record
indicates that complainant testified that she endured mental anguish,
recurring anger, rapid weight gain, humiliation, and embarrassment
associated with the sexual harassment and numerous other work-place
stressors she experienced for approximately two years. In addition, the
record contains psychiatric records for treatment commencing in May, 1995
and continuing through December, 1995 which indicates that complainant
was diagnosed with �major depressive disorder, single episode, moderate
to severe.� Complainant was prescribed an anti-depressant medication
for several months. The medical records indicate that complainant's
symptoms included chest pain, the exacerbation of her asthma, insomnia,
decreased energy, decreased concentration, decreased motivation, crying
spells, 55 pound weight gain, and lost interest in hobbies. The medical
records further indicate that complainant complained of being sexually
harassed in addition to numerous other work-place stressors. There is
also some corroboration from complainant's sister that she suffered from
anxiety and humiliation as a result of the sexual harassment.
While we agree with the AJ that the record is unclear as to what extent
job related issues not associated with the sexual harassment affected
complainant's mental state, we find that complainant does present
sufficient evidence to show that the sexual harassment did contribute
to the symptoms described above. In addition, the record indicates that
complainant's emotional harm lasted at least 3 � years.
The Commission's decisions in Economou v. Department of the Army, EEOC
No. 01983435 (August 5, 1999), Terrell v. Department of Housing and Urban
Development, EEOC Appeal No. 01961030 (October 25, 1996), and Minardi
v. United States Postal Service, EEOC No. 01981955 (October 3, 2000), all
involve damages in cases where the agency's conduct was one of several
causes of emotional harm. In Economou, the complainant was the victim
of retaliation by his supervisor over a period of approximately one year.
The complainant was diagnosed with Post Traumatic Stress Disorder (PTSD)
which began in 1991 as a result of a car accident. During the period of
retaliation, the Commission found that complainant had a recurrence of
PTSD after falling off a chair at work, resulting in a severe concussion
and neck and back injuries. The Commission concluded that while there
were other contributing causes to complainant's documented psychological
problems (depression and anxiety, for which the complainant was prescribed
Xanax) for a period of one year, he was nevertheless entitled to $35,000
in non-pecuniary damages.<8>
In Minardi, the Complainant was discriminated on the basis of sex
when he was not selected for the position of General Supervisor.
The complainant suffered emotional harm in the nature of headaches,
insomnia, difficulty in concentration, irritability, depression,
panic anxiety attacks, despondency, loss of self esteem, tension,
loss of character and reputation, loss of enjoyment of life, stress
and inconvenience. The complainant's physician acknowledged that
complainant's depression had more than one cause but stated that
complainant's feeling of �victimization� by the agency is a �great part
of the manifestation of his depression.� The Commission found little
evidence describing the duration of harm and found a non-pecuniary award
of $20,000 appropriate.<9>
In Terrell, the complainant was discriminated based upon sex when he
was not selected for the position of Equal Opportunity Specialist in
March 1993. The complainant experienced sleep problems, frequent crying,
embarrassment, mental anguish, loss of both self-esteem and enjoyment of
life, introversion, and disruptions in his relationships with his family
and friends. In addition, complainant was diagnosed to be suffering
from depression, including suicidal thoughts. The Commission also found
that complainant's harm lasted approximately 1 � years. The Commission
found that the complainant's emotional harm was caused by other factors
in addition to the non-selection, including his wife's cancer, his own
physical health, his finances, his marital problems, and his inability
to pass the bar examination. Accordingly, the Commission found that a
non-pecuniary award of $25,000 was appropriate.<10>
Having carefully considered the facts of this case in comparison with
amounts awarded in similar cases, we find that the AJ's award of $10,000
for non-pecuniary damages is insufficient. We find that complainant
suffered significant symptoms of depression over approximately 3 � years.
While the record indicates that complainant's harm was caused by numerous
other factors, in addition to the sexual harassment (similar to Terrell),
we find the harm more severe and of longer duration than Terrell and
accordingly, award complainant $35,000.00 in non-pecuniary damages.
Accordingly, and for the reasons set forth above, the Commission hereby
AFFIRMS the AJ's Recommended Decision, in part, and MODIFIES, in part.
ORDER (C0900)
The agency is ordered to take the following remedial action:
1. Within forty-five (45) days from the date this decision becomes
final, the agency shall tender to complainant $35,000.00 in non-pecuniary
damages.
2. The agency is ordered to take reasonable and appropriate actions to
ensure that neither the complainant nor any other employee is subjected
to a discriminatory hostile, intimidating and abusive work environment
because of sexual harassment in the future<11>;
3. The agency, within thirty (30) days of such date as this decision
becomes final, based upon the evidence submitted by complainant and
through evidence in the agency's possession and other appropriate sources,
shall determine whether any sick leave, annual leave, or leave without
pay, was taken by complainant in direct response to the sexual harassment
found herein, to include any leave the complainant took in order to
avoid the hostile work environment created by the sexually harassing
conduct described herein. Complainant shall cooperate in all reasonable
manner with the agency's efforts. Should evidence be found that there
was leave usage taken in response to or in avoidance of such hostile
work environment, complainant shall be reimbursed for all such leave.
4. The agency, within eighteen (18) months from the date this decision
becomes final, shall conduct at least three (3) training sessions relating
to sexual harassment in the work place. The training shall include how
to recognize sexual harassment, how to prevent it, how to eradicate it,
and the rights and responsibilities of employees and supervisors at the
agency's Greenville, South Carolina post office and all sub-facilities and
offices coming under the administrative jurisdiction of the Greenville,
South Carolina post office, concerning sexual harassment in the work
place. One such training session shall be mandatory for supervisors
and managers and rank and file employees alike. The first such training
session shall take place no later than 90 days from the date this decision
becomes final. The second training session shall take place no later than
120 days following the first training session and the third session shall
take place no later than 120 days following the second training session.
The mandatory session for supervisors shall include all supervisory and
managerial employees at the Greenville facility and shall address in
a detailed and meaningful way these officials' responsibilities under
EEO laws as they relate to the prevention and elimination of sexual
harassment in the work place.
5. 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 verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Greenville, South Carolina 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.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by
the agency. The attorney shall submit a verified statement of fees to
the agency<12> -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
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 (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. 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. If you
file a request to reconsider and also file a civil action, 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 15, 2002
__________________
Date
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507
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 this 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 Greenville, South Carolina postal facility (�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 has been found to have discriminated on the basis of sex
when a male supervisor sexually harassed complainant from August 1993 to
September 1995. The Facility has been ordered to: (1) take reasonable
and appropriate actions to ensure that the complainant and no other
employee is subjected to a discriminatory hostile, intimidating and
abusive work environment because of sexual harassment; (2) restore
to complainant any sick or annual leave she was compelled to take in
response to the sexual harassment; (3) conduct at least three training
sessions relating to sexual harassment; (4) issue compensatory damages
in the amount of $35,000; and (5) award reasonable attorney's fees
and costs. The Facility will ensure that officials responsible for
personnel decisions and terms and conditions of employment will abide
by the requirements of all federal equal employment opportunity laws
and will not retaliate against employees who file EEO complaints.
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 1 Complainant raised a claim of age discrimination
in all four complaints, but withdrew this claim during the processing
of her complaints.
2 The prior EEO activity involved a December 2, 1994 conversation with
the Labor Relations Specialist (LRS).
3 Complainant also originally alleged that she was denied continuation
of pay on or about July 28, 1995, but during the hearing she withdrew
this claim.
4 While complainant never filed a formal EEO complaint with respect to
this allegation, the record indicates that the parties agreed to the
inclusions of this issue at the hearing before the EEOC Administrative
Judge (AJ). The record further shows that this issue was fully and fairly
litigated at the hearing and the AJ reached a decision on the merits of
this issue finding discrimination. The agency raises an objection with
respect to the procedural deficiency, yet also addresses the merits
of the sexual harassment issue in its FAD. Since the parties agreed
to the inclusion of this issue and since the issue has been fully and
fairly litigated, in the interest of administrative economy, we find
no reason to remand this matter for EEO processing at this late stage.
Accordingly, we find this issue properly before us on appeal.
5 We shall not recite the facts herein as they have been described
in great detail in both the Recommended Decision and the Final Agency
Decision.
6 S1 corroborated this testimony.
7 We do not address each and every argument raised by complainant on
appeal since many arguments have been previously discussed by the AJ in
his recommended decision.
8 We note that while the number of other causes were limited, the
duration of harm was also limited.
9 We note that while the number of causes of the harm were limited,
the harm was moderate as well.
10 We note that while there were a number of causes of complainant's harm,
the harm was substantial, even though extending for a short duration.
11 We note that some time prior to her filing the complaints at issue
herein, complainant was reassigned to a lower grade position and is no
longer under the supervision of RMO. We also note that this reassignment
is not an issue herein.
12 The claimed attorneys fees should be those fees associated with the
litigation of complainant's sexual harassment claim.