01A01352
01-23-2003
Janet L. Davis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Janet L. Davis v. United States Postal Service
01A01352
01-23-03
.
Janet L. Davis,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A01352
Agency No. 4E-800-0233-99
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. For the following reasons, the Commission affirms
the agency's final decision.
ISSUE
Whether the agency is liable for the sexually harassing behavior of
complainant's co-worker.
BACKGROUND
In August, 1991, complainant, a training technician at the agency's
Postal Education and Development Center, General Mail Facility, Denver,
Colorado, was transferred to the agency's Communications Department.
Starting in September, 1991, complainant's co-worker began hugging
and kissing complainant, who objected to and rejected the co-worker's
behavior. Complainant did not initially report the co-worker's behavior
to her superiors. On one occasion, complainant's supervisor observed
the co-worker hug complainant. The supervisor told the co-worker to stop
the behavior. According to the complainant, the co-worker continued the
same kissing and hugging behavior with complainant. On March 2, 1992,
the co-worker grabbed complainant by the hips and rubbed his pelvis
against her. Complainant reported this event to the EEO manager, who
urged complainant to file a formal complaint. According to complainant,
the EEO Office took complainant's statement, but did not further pursue
the claim, despite knowledge of reports of the co-worker's sexual
harassment made by other women in the agency. Complainant asserted that
she believed that she had satisfied all administrative prerequisites
for filing a formal complaint. The co-worker harassed complainant twice
after she reported his behavior. One of these events arose because the
supervisor who previously observed and told the co-worker to stop the
harassing behavior later assigned complainant to ride in a car with the
co-worker, who harassed complainant during the car ride.
According to the agency, effective March 6, 1992, the co-worker was
returned to his former position at the agency's North Pecos Station.
According to the complainant, the co-worker continued to work with
complainant and continued his harassing behavior until early April,
1992, when he was transferred away from the Communications Department.
On June 2, 1995, complainant filed a civil action in U.S. District Court,
alleging, among other things, sexual harassment discrimination. In a
summary judgment opinion, the court found that complainant's claims were
untimely filed, and in any event, because complainant was satisfied with
her job, she could not show that her work environment was intolerable
(hostile). On appeal, the circuit court reversed, holding among other
things, that as a matter of law, a genuine issue of material fact
existed about whether the complaint was timely filed, and a claimant
who is satisfied with a job can nonetheless subjectively perceive the
work environment to be hostile. Davis v. United States Postal Service,
142 F.3d at 1334, 1341 (10th Cir. 1998). On May 6, 1998, the circuit
court remanded the case for further proceedings before the district court.
On complainant's motion, the district court remanded the matter to the
agency on December 31, 1998, for investigation and final decision.
On remand, the agency investigated complainant's claim of sexual
harassment, and, on July 8, 1999, issued a report of investigation.<1>
The report of investigation does not contain any record of the March,
1992 EEO counseling, nor does it show what further action was taken by
the agency. The investigation consists wholly of the district court
trial transcripts. On October 22, 1999, the agency issued a decision
finding the sexual harassment claim was not timely brought, and that
nonetheless, the complainant failed to prove discrimination on the basis
of sexual harassment.
On appeal the complainant argued that her claim was timely brought,
and that in light of other sexual harassment complaints brought by other
agency employees against the co-worker, the agency was on notice of these
complaints but failed to take immediate and effective corrective action
to ensure that the co-worker could not again harass complainant.
The agency asked that we affirm its final decision.
ANALYSIS
Timeliness
Under 29 C.F.R. 1614.105(d), an agency is required to notify the
complainant of, among other things, the right to file a discrimination
complaint after the employee has sought EEO counseling. Where there
is an issue of timeliness, "[a]n agency always bears the burden of
obtaining sufficient information to support a reasoned determination as
to timeliness." Kelly v. United States Postal Service, EEOC Request
No. 05A00985 (Sept. 26, 1992) (quoting Williams v. Department of
Defense, EEOC Request No. 05920506 (August 25, 1992)). In Ericson
v. Department of the Army, EEOC Request No. 05920623 (January 14,
1993), the Commission has stated that "the agency has the burden of
providing evidence and/or proof to support its final decisions." Here,
it is clear that complainant timely contacted the EEO office about
unlawful sexual harassment. No evidence shows however, that in 1992
the agency advised complainant of the appropriate procedure to follow
in order to continue with administrative processing. In the absence
of this advice, Complainant had no reason to suspect that this EEO
contact was inadequate to continue the administrative process for her
sexual harassment complaint, and indeed, complainant believed that she
was filing an EEO complaint with this EEO contact. For these reasons,
since the agency failed to show that it followed regulatory procedure, we
credit complainant's evidence that she filed a complaint, and we conclude
that the agency has failed to carry its burden of proof on timeliness.
For these reasons, we find that this matter is properly before us
for review.
Sexual Harassment/Hostile Work Environment
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful, if it is sufficiently severe or pervasive to alter the
conditions of the employee's employment. Miller v. Department of the
Treasury, EEOC Appeal No. 05A10338 (Aug. 15, 2002). To establish a
prima facie case of harassment or hostile environment discrimination,
a complainant must show that: (1) she belongs to a statutorily protected
class; (2) she was subjected to harassment in the form of unwelcome verbal
or physical conduct involving the protected class; (3) the harassment
complained of was based on the statutorily protected class; and (4)
the harassment affected a term or condition of employment and/or had the
purpose or effect of unreasonably interfering with the work environment
and/or creating an intimidating, hostile, or offensive work environment.
29 C.F.R. �1604.11; see generally, EEOC Enforcement Guidance: Vicarious
Employer Liability for Unlawful Harassment by Supervisors, Section I
(Jun. 18, 1999).
In a case of co-worker sexual harassment, an agency is responsible for
acts of sexual harassment in the workplace where the agency (or its
agents) knew or should have known of the conduct, unless it can show
that it took immediate and appropriate corrective action. Id.
We find that complainant has satisfied the elements of a prima facie
case of harassment. The agency did not deny that the co-worker touched
complainant sexually on at least three occasions, nor did the agency argue
that the co-worker's acts were not sufficiently severe and pervasive to
constitute sexual harassment. Rather, the agency argued that once it had
notice of the harassment, it took immediate and appropriate corrective
action. Indeed, the evidence shows that in February, 1992, complainant's
supervisor observed the co-worker sexually harass complainant and told the
co-worker to stop. However, the co-worker did not stop, and continued
to harass complainant after receiving the supervisor's instruction.
Complainant reported the sexual harassment to the agency's EEO manager,
and on March 6, 1992, or April, 1992, the co-worker was transferred away
from the Communications Department.
Here, we find that whether the co-worker was transferred in March or
April is of little consequence where complainant's supervisor was earlier
aware of the offensive behavior but did not stop it. Where the agency
allowed the behavior to continue after the agency knew of the offensive
behavior, it clearly failed in its responsibility to provide immediate
and appropriate corrective action.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we reverse the agency's
final decision and find that the agency is liable for the co-worker's
sexual harassment.
ORDER
1. The agency should consider taking disciplinary action against
complainant's supervisors for failing to provide an immediate and
effective remedy. If the agency decides to take disciplinary action,
it shall identify in its compliance report the action taken. If the
agency decides not to take disciplinary action, it shall set forth in its
compliance report the reason(s) for its decision not to impose discipline.
2. The agency shall provide training in identifying and remedying sexual
harassment to the supervisor involved in this matter.
3. The agency shall post a notice, as provided below.
4. Within 30 days of the date this decision becomes final, the agency
shall request objective evidence from complainant in support of her
claim for compensatory damages, with sufficient specificity to allow
complainant to reasonably respond to the agency's request.<2> The
agency shall conduct a supplemental investigation to determine the
amount of compensatory damages due to complainant, if any, and issue a
final agency decision. The supplemental investigation and final agency
decision shall be completed within 60 days of complainant's presentation
of objective evidence. A copy of the final agency decision must be
submitted to the Compliance Officer, as described below.
5. The agency shall submit a report of compliance as noted below.
All documents submitted to the Compliance Officer must be provided to
the complainant.
POSTING ORDER (G1092)
The agency is ORDERED to post at its General Mail Facility in Denver,
Colorado, 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 insure 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 -- 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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant in
the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___01-23-03_______________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF
THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an order by the United States Equal
Employment Opportunity Commission dated __________ which found that
a violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S. C. � 2000e et seq. (1994 & Supp. V 2000) 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 United States Postal Service, General
Mail Facility Denver, Colorado confirms its commitment to comply with
these statutory provisions.
The United States Postal Service, General Mail Facility, Denver, Colorado,
supports and will comply with such Federal law and will not take action
against individuals because they have exercised their rights under law.
The United States Postal Service, General Mail Facility, Denver,
Colorado, has been found to be liable for sexual harassment. The agency
has been ordered to provide EEO training to the supervisor responsible
for allowing the sexual harassment to continue and to pay appropriate
compensatory damages. The United States Postal Service, General Mail
Facility, Denver, Colorado, 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.
The United States Postal Service, General Mail Facility, Denver, Colorado,
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 16141 Complainant did not request a hearing before an
Equal Employment Opportunity Commission administrative judge.
2 The Commission's decision in Carle v. Department of the Navy, EEOC
Appeal No. 01922369 (January 5, 1993), describes in detail the type of
evidence which should be presented in support of a claim for compensatory
damages.