01997206
02-13-2002
Aurora Ramirez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Aurora Ramirez v. United States Postal Service
01997206
February 13, 2002
.
Aurora Ramirez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01997206
Agency No. IE-853-1064-96
Hearing No. 350-97-8281X
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleged that she was discriminated
against on the basis<1> of sex (female) when she was sexually harassed
by a co-worker.
ISSUE PRESENTED
The issue on appeal is whether the agency was correct in concluding that
it complied with the requirements of the case law under Title VII and
immediately addressed complainant's allegations of sexual harassment.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a mailhandler at the Phoenix Processing/Distribution Center, Phoenix,
Arizona. Believing she was a victim of discrimination, complainant
sought EEO counseling and subsequently filed a formal complaint on
October 21, 1996. At the conclusion of the investigation, complainant
requested a hearing before an EEOC Administrative Judge (AJ). The AJ
found that complainant was subjected to unwelcome physical conduct
of a sexual nature. The AJ notes that complainant testified credibly
that a co-worker came up behind her while she was in the break room and
pressed his penis into her buttocks. She further found that the sexual
conduct in the instant case was physically threatening and humiliating
to the complainant. The AJ concluded that the sexual conduct complained
by complainant was sufficiently severe or pervasive to alter the terms
and conditions of her employment and create an abusive or hostile work
environment.
The AJ found that the agency did investigate complainant's complaint
of sexual harassment and did issue a two-week suspension to the
harasser. However, according to the AJ, the agency did not adequately
investigate complainant's complaint and did not take appropriate
corrective action to remedy the harassment. Specifically, the AJ found
that complainant told her supervisor that she did not feel safe with
the harasser in the building, nevertheless, her supervisor instructed
her to report to work. The AJ concluded that complainant's supervisor
did this because she felt that the harasser was not a threat and that
complainant needed to return to work. Although complainant's supervisor
changed the harasser's lunch and break times, his hours of work were not
changed, and complainant was still afraid of encountering him at work.
The AJ further found that by requiring complainant to work in the same
building with her harasser, without changing his hours of work, the
agency subjected complainant to a hostile work environment.
The AJ also found that although the agency credited complainant's
allegations and issued the harasser a two-week suspension, more severe
discipline may have been warranted based upon the repeated instances
of harassment against other employees by the harasser. The AJ further
found that another female co-worker made harassment allegations against
the harasser.
Finally, the AJ found that the discipline imposed on the harasser was
delayed. The harasser did not actually serve the two- week suspension
until late November, several months after the incident. The notice of
suspension also did not warn him that further misconduct could result in
more severe discipline, including termination. The AJ further ordered the
agency to take some corrective actions, including paying the complainant
$15,000.00 as compensatory damages for the emotional distress, mental
anguish and depression caused by the agency's action.
FINAL AGENCY DECISION
On August 27, 1999, the agency issued a final decision finding that
complainant was subject to conduct amounting to sexual harassment by
a co-worker but rejecting the AJ's recommended decision finding agency
liability. The agency found that it complied with the requirements of
the case law under Title VII and immediately addressed complainant's
allegations of sexual harassment. The agency found that it exercised
reasonable care to prevent and correct the harassing behavior by
providing immediate interim relief even prior to instituting disciplinary
action against the harasser and providing reasonable opportunities to
complainant to assist in obtaining a harassment free working environment.
Specifically, the agency found that after reporting the incident,
complainant reported for work for one day, July 22, 1996, after being
assured that the harasser's break times and lunch times had been changed
and that he had been moved to a different part of a very large mail
facility. The agency also found that immediately following the incident
(July 13, 1996), the harasser �bid out� of the complainant's facility
and began to work at the airport facility effective August 8, 1996.
The agency also found that complainant was escorted in and out of the mail
facility on July 22, 1996, and in fact, never encountered the harasser.
The agency held that the facts indicate that it successfully removed
the offending individual from contact with complainant. The agency also
found that it instituted disciplinary proceedings against the harasser
all within less than three weeks from the date that complainant reported
the incident.
The agency further stated that following the conclusion of complainant's
temporary worker's compensation benefits, the agency attempted to bring
complainant back to the workplace by offering her a job at another
installation at her full pay. The agency found that complainant never
submitted medical documentation to the Postal Service following its job
offer of December 31, 1996 to support her inability to work. The agency
further found that complainant claimed that she was totally disabled
from working anywhere. Finally, the agency held that complainant never
responded to Postal Service's letter offering her information regarding
a light duty assignment or disability retirement.
CONTENTIONS ON APPEAL
Complainant filed the instant appeal and essentially repeated the
arguments made at the hearing. The agency asked that its decision
be affirmed based on its swift and appropriate remedial response to
complainant's claim.
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). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
In the case at hand, we agree with the AJ's determination that complainant
was subjected to unwelcome sexual harassment, based on her gender, which
was so severe that it affected complainant's conditions of employment.
The record reveals that the sexual conduct in the instant case was
physically threatening and humiliating to complainant.
We further agree with the AJ's finding, that the agency did not adequately
investigate complainant's complaint and did not take appropriate
corrective action to remedy the harassment. In reaching that conclusion,
we note that the agency knew about the incident; it is undisputed that the
conduct was unwelcome; the harassment was sufficiently severe or pervasive
that it altered complainant's conditions of employment; complainant did
not want to go back to work, because her harasser was still working in
the same facility; and that the agency required complainant to work in
the same building with her harasser, without changing his hours of work.
We also find that under the circumstances of this case, the agency
failed to appropriately discipline the harasser. The record reveals
that it is not the first misconduct of the harasser. In October 1995,
the harasser had previously received a letter of warning from management
for harassing a female co-worker.
Based on the record before us, we conclude there is substantial evidence
to support the AJ's finding of sexual harassment and agency liability.
After a careful review of the record in its entirety, including
complainant's contentions on appeal, and arguments and evidence not
specifically addressed in this decision, the Commission finds that the
AJ's recommended decision summarized the relevant facts and referenced
the appropriate regulations, policies and laws. We, therefore, discern
no reason to overturn the recommended decision nor the order imposed by
the AJ, and REVERSE the agency's final decision. The agency is directed
to comply with the Commission order set forth below.
ORDER
The agency shall determine the appropriate amount of back pay
(with interest, if applicable) and benefits (e.g. medical expenses)
due complainant, pursuant 29 C.F.R. 1614.501 no later than sixty (60)
calendar days after the date this decision becomes final. The complainant
shall cooperate in the agency's efforts to compute the amount of back
pay and benefits, and shall provide all relevant information requested
by the agency. If there is a dispute regarding the exact amount of back
pay and benefits, the agency shall issue a check to the complainant for
the undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. The 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.�
The agency should pay the complainant $15,000.00<2> as compensatory
damages for the emotional distress, mental anguish and depression
caused by the agency's actions. Complainant, through counsel, shall
submit a request for attorney's fees and costs. No later than sixty
(60) days after the agency's receipt of the attorney's fees statement
and supporting affidavit, the agency shall issue a final agency decision
addressing the issues of attorney's fees, costs, and compensatory damages.
The agency shall submit a copy of the final decision to the Compliance
Officer at the address set forth below.
The agency should ensure that its policy concerning sexual harassment
is prominently posted in areas frequented by its employees.
The agency should provide training to its management and supervisory
employees on the subject of sexual harassment, including what constitutes
sexual harassment, how to prevent it, and how to investigate and remedy
complaints of sexual harassment.
The agency should ensure that all its employees are aware that sexual
harassment in the workplace will not be tolerated and informed of what
they should do if they are subjected to unwelcome sexual conduct.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled �Implementation of the Commission's
Decision.�
POSTING ORDER (G0900)
The agency is ordered to post at its Phoenix Processing/Distribution
Center, Phoenix, Arizona 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.
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 -- 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.
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
February 13, 2002
__________________
Date
1Complainant's claim based upon race was withdrawn.
2The AJ recommended an award in this amount after considering all evidence
submitted by the parties.