01972750
06-22-2000
Deborah Ulloa, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Deborah Ulloa v. United States Postal Service
01972750
June 22, 2000
Deborah Ulloa, )
Complainant, )
) Appeal No. 01972750
v. ) Agency No. 5E-1039-91<1>
) Hearing No. 350-95-8193X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
)
DECISION
Complainant timely initiated an appeal from a final agency decision (FAD)
concerning her equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of sex (female) and reprisal<2>
(prior EEO activity), in violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. � 2000e et seq.<3> The appeal is accepted
in accordance with 64 Fed. Reg. 37,644, 37,659 (to be codified at 29
C.F.R. � 1614.405). For the following reasons, the agency's decision
is AFFIRMED in PART and REVERSED in PART.
ISSUES PRESENTED
The issues on appeal include:
(1) whether complainant was discriminated against on the basis of sex
when she was subjected to sexual harassment by a facility supervisor
(S1) after signing a settlement agreement (the Agreement) with the agency;
(2) whether complainant was discriminated against on the basis of sex
when she was subjected to a hostile environment as a result of widespread
sexual rumors and obscene telephone calls to her residence after executing
the Agreement; and
(3) whether complainant was discriminated against on the basis of reprisal
(prior EEO activity) when other supervisors retaliated against her after
she initiated EEO activity.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Parcel Post Distribution Clerk at the agency's General
Mail Facility in Phoenix, Arizona. Complainant filed an EEO complaint
when she received a fourteen day suspension from S1 and alleged that S1
sexually harassed her. Subsequently, complainant signed the Agreement,
dated February 15, 1989, wherein the agency agreed, among other things,
to rescind the fourteen day suspension, remove related correspondence
from her file, and ensure that the work environment was free from
sexual harassment. Shortly thereafter, complainant informed agency
management that she believed the Agreement had been breached because the
agency failed to remove relevant documents from her file, and further,
that S1 continued to sexually harass her while other agency employees
created a hostile environment by spreading pernicious rumors about her
sexual activities and otherwise made working conditions intolerable.
Upon her physician's instructions, complainant left the facility in
September of 1989, was shortly thereafter deemed totally disabled, and
she received worker's compensation benefits. In 1993, she was deemed
eligible to receive disability retirement from the agency, but elected
to continue to receive worker's compensation in lieu of disability
payments. See Administrative Judge's (AJ) Recommended Decision (RD)
at page 8. Complainant has not returned to the facility since her
departure in September of 1989.
The procedural history of complainant's allegations of sexual harassment
and subsequent settlement breach are substantial, however, the Commission
notes that the AJ's RD adequately sets forth the facts and issues of
complainant's complaint and we will not reiterate the facts herein except
where such facts require further discussion.<4> The Commission recognizes
that while we ultimately determined that the agency did not breach the
Agreement, we also found that the agency did not process complainant's
sexual harassment allegations, and we ordered the agency to process
those allegations. See supra n.4. Ultimately, and at the conclusion of
the investigation, complainant was provided a copy of the investigative
report and requested a hearing before an Equal Employment Opportunity
Commission (EEOC) AJ. Following a hearing, the AJ issued her RD.
Concerning issue (1), the AJ concluded that complainant failed to
establish, by a preponderance of the evidence, sexual harassment
(hostile environment) as a result of unwanted touching and remarks
by S1, or concerning obscene telephone calls of unknown origin.
In reaching this conclusion, the AJ found that although S1's testimony
about his relationship with complainant was not credible, complainant's
testimony respecting S1's conduct toward her was vague, uncorroborated
and insufficient to establish that a hostile environment existed based
on S1's verbal or physical conduct.
Concerning issue (2), the AJ concluded that complainant did establish, by
a preponderance of the evidence, sexual harassment (hostile environment)
resulting from pervasive rumors about her sexual activities following
her execution of the Agreement, continuing through her departure in
September of 1989, and that the agency failed to promptly and thoroughly
investigate her sexual harassment and reprisal allegations. In reaching
this conclusion, the AJ noted that complainant's testimony about the
rumors was corroborated by a number of co-workers at the hearing, and
that given the egregious and pervasive nature of the comments, it was
inconceivable that agency supervisors would have been unaware of such
comments about complainant's sexual exploits. While recognizing that the
Field Director of Human Resources responded to complainant's August 30,
1989, hostile environment allegations to the Postmaster, the AJ found
that these rumors developed and persisted, in part, from S1's improper
conduct and from the failure of other supervisors to take prompt and
effective action under the circumstances to investigate or remedy the
situation prior to the agency's response by the Postmaster.
Concerning issue (3), the AJ concluded that while complainant established
a prima facie case of retaliation concerning specific conduct by
three agency supervisors, these supervisors articulated legitimate,
nondiscriminatory reasons for their actions, and complainant failed to
demonstrate that more likely than not, these supervisors' actions were
a pretext for reprisal.
As relief, the AJ ordered, among other things, that complainant receive
back pay, front pay, overtime, and other related benefits, retroactive
to the date complainant was placed in off-work status, and continuing
until an appropriate physician determines complainant is able to return
to work.<5> Additionally, the AJ ordered that the agency post a notice,
for a period of two years, concerning the above-referenced violation
and its commitment to ensure a work environment free from harassment
and discrimination.
The agency's FAD adopted the AJ's findings of no discrimination
concerning issues (1) and (3). However, the FAD rejected the AJ's
finding concerning issue (2), and instead concluded that the agency
investigated complainant's hostile environment allegations, and promptly
informed her that facility supervisors had "considerably different views"
than that of complainant about the incidents she described. The agency
further concluded that if complainant had "direct evidence or statements
from persons to support her allegations, she should provide them to
the agency, so that they would continue to investigate." Therefore,
the agency concluded that it was not liable because complainant's
allegations of sexual harassment resulting from pervasive rumors about her
sexual exploits were promptly and effectively investigated. On appeal,
complainant contends that the AJ's RD should be reinstated. The agency
stands on the record and requests that the Commission affirm its FAD.
ANALYSIS AND FINDINGS
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at 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 RD summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We therefore
discern no basis to disturb the AJ's findings of no discrimination in
issues (1) and (3), or discrimination in issue (2), which were based on a
detailed assessment of the record and of the credibility of the witnesses.
Concerning liability for the acts of harassment corresponding to
issue (2), the Commission notes that an employer is subject to
vicarious liability for Sexual harassment when it is "created by a
supervisor with immediate (or successively higher) authority over
the employee." Burlington Industries. Inc., v. Ellerth, 524 U.S. 742,
745 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 802 (1998).
When the harassment does not result in a tangible employment action
being taken against the employee, the employer may raise an affirmative
defense to liability. The agency can meet this defense, which is
subject to proof by a preponderance of the evidence, by demonstrating:
(a) that it exercised reasonable care to prevent and correct promptly
any sexually harassing behavior; and (b) that complainant unreasonably
failed to take advantage of any preventive or corrective opportunities
provided by the agency or to avoid harm otherwise. Burlington Industries,
Inc., v. Ellerth, 524 U.S. at 765; Faragher v. City of Boca Raton,
524 U.S. at 807. This defense is not available when the harassment
results in a tangible employment action (e.g., a discharge, demotion,
or undesirable reassignment) being taken against the employee.
The Commission agrees with the AJ that agency supervisors more likely than
not were aware of the pervasive rumors circulating amongst complainant's
co-workers, and that the agency's inaction when the rumors commenced
precludes a finding that it took prompt and effective remedial action.
Accordingly, the inadequacy of the agency response, as set forth by
the AJ in the RD, precludes the agency from meeting the first prong
of the affirmative defense outlined in Faragher and Ellerth, supra.
See also Viers v. United States Postal Service, EEOC Appeal No. 01975665
(October 14, 1999); Tom v. Department of Health and Human Services, EEOC
Appeal No. 01966875 (October 2, 1998). We also note that with respect
to the facility Postmaster's investigation, the existence of direct or
corroborating evidence is not a pre-requisite to the initiation of an
allegation of sexual harassment, but presence or absence of such evidence
should be considered when assessing the allegations during the course of,
and following the investigation.
Concerning the AJ's award of front pay, the Commission notes that an
award of front pay requires that an employee be available for work,
regardless of the disabling condition, and that if complainant is
unable to return to work, she is not entitled to an award of front pay.
See, e.g., DiCamillo v. Department of the Treasury, EEOC Request
No. 05980180 (July 30, 1998); Holly v. United States Postal Service,
EEOC Appeal No. 01950220 (August 21, 1997); York v. Department of the
Navy, EEOC Appeal No. 01930435 (February 25, 1994). Based on the facts
adduced at the hearing and summarized briefly herein, complainant is not
able to work, and therefore is not entitled to an award of front pay.
Concerning the award of backpay, we agree with the AJ's conclusion that
complainant is entitled to backpay and interest, where appropriate,
retroactive to the date she was placed in off-work status, and less
interim earnings from any wage source and other appropriate deductions.
See Schultz v. United States Postal Service, EEOC Petition No. 03980087
(October 14, 1999); Huminston v. United States Postal Service, EEOC
Petition No. 04980015 (September 24, 1998); Nichols v. Frank, 42 F. 3d
503, 515-16 (9th Cir. 1994).
Concerning the AJ's order for a posting at the agency for a period
of two years, the Commission notes that the AJ's recommended length
of time for a posting is considerably longer than the typical notice
period, sixty days, which EEOC orders generally are required to remain
posted at an agency. The Commission also recognizes that the agency's
inaction concerning complainant's allegations of sexual harassment,
and the appeals which ensued, resulted in an inordinate delay (over nine
years) from the time the allegations were first made, and the time that
complainant will ultimately receive make-whole relief under Title VII.
After considering the record as a whole, including the AJ's findings
and recommended relief, the Commission determines that a posting shall
be required to remain at the facility, pursuant to our ORDER herein,
for a period of one hundred and eighty (180) days.
CONCLUSION
Therefore, after a careful review of the record, including complainants
arguments on appeal, and arguments and evidence not discussed in this
decision, the Commission AFFIRMS in part the agency's finding of no
discrimination concerning issues (1) and (3), and REVERSES in part the
agency's finding of no discrimination concerning issue (2). We REMAND
the matter to the agency to take remedial actions in accordance with
this decision and the ORDER below.
ORDER (D1092)
The agency is ORDERED to take the following remedial action:
The agency shall provide complainant backpay and other compensation
due her, including any reimbursement for sick, annual or other leave
due her, as well as any overtime pay and related benefits due her,
retroactive to the day complainant was placed in off-work status,
pursuant to 5 C.F.R. � 550.805.
The agency shall determine the appropriate amount of back pay (with
interest, where applicable)<6> and other benefits due complainant,
pursuant to 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 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 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 is directed to conduct a minimum of twenty-four (24) hours of
training for the managers, supervisors, Postmaster, EEO personnel, and
personnel staff, who were found to have discriminated against complainant
by failing to take prompt and effective remedial action concerning
complainant's allegations of sexual harassment. The agency shall
address these employees' responsibilities with respect to eliminating
discrimination in the workplace, ensuring that sexual harassment in
all its forms and retaliation do not occur, understanding the remedies
available against those who discriminate, and all other supervisory
and managerial responsibilities under equal employment opportunity law.
The agency shall provide a minimum of sixteen (16) hours of diversity
training for all employees at the General Mail Facility, Phoenix,
Arizona concerning unlawful harassment in the workplace.
The agency shall take appropriate preventative steps to ensure that
no employee is subjected to harassment under any protected basis or
retaliation for engaging in EEO activity, and to ensure that appropriate
steps are taken immediately after management is notified of any such
harassment.
The agency shall take all appropriate corrective steps to prevent the
recurrence of such discriminatory actions by and from all relevant
agency officials. Such corrective steps shall include reviewing and
revising agency policies and procedures relating to the investigation
and prevention of sexual harassment so as to provide prompt and thorough
investigation of such complaints, and appropriate and effective remedial
corrective actions in response to such complaints. The agency shall also
review the matters giving rise to the instant complaint to determine
the appropriateness of disciplinary actions against agency officials
involved and responsible. The agency shall record its basis for deciding
whether or not to take disciplinary action, submit such records to the
EEOC pursuant to paragraph six below, and maintain such records for
a period of no less than five (5) years from the date this finding of
discrimination becomes final.
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 back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its General Mail Facility, Phoenix,
Arizona, 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 one hundred and
eighty (180) 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 (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (T1199)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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:
June 22, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1The Commission notes that the Administrative Judge's Recommended Decision
inadvertently listed the agency case number as 5E-1031-91.
2The Commission notes that the Administrative Judge added reprisal as a
basis after assessing complainant's allegations and testimony, and the
agency did not object.
3On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
4We note that this is the seventh time it has addressed issues stemming
from complainant's allegations. See e.g., Ulloa v. United States
Postal Service, EEOC Appeal No. 01910555 (August 13, 1991), request
for reconsideration denied in Ulloa v. United States Postal Service,
EEOC Request No. 05910899 (January 10, 1992); Ulloa v. United States
Postal Service, EEOC Appeal No. 01940013 (March 10, 1994), request
for reconsideration denied in Ulloa v. United States Postal Service,
EEOC Request No. 05940534 (April 13, 1995); Ulloa v. United States
Postal Service, EEOC Appeal No. 01942686 (July 1, 1994), request for
reconsideration granted in Ulloa v. United States Postal Service, EEOC
Request No. 05950217 (August 29, 1996).
5The Commission agrees with the AJ's finding that compensatory damages
are not available for acts of harassment occurring prior to the passage of
the Civil Rights Act of 1991. See Kalra v. Department of Transportation,
EEOC Request No. 05940516 (May 31, 1996).
6The Commission notes that although the discriminatory action predates
the passage of the Civil Rights Act of 1991, we have previously held
that an individual is entitled to interest on the back pay which accrued
subsequent to November 21, 1991, the effective day of the Act. See Malek
v. Department of Health and Human Services, EEOC Appeal No. 04980013
(August 13, 1998) at footnote 4; Ramsay v. Department of the Navy,
EEOC Request No. 05940658 (July 27, 1995).