01965465
10-02-1998
Kathy S. Fratamico, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (N.E./New York Metro Region), Agency.
Kathy S. Fratamico v. United States Postal Service
01965465
October 2, 1998
Kathy S. Fratamico, )
Appellant, )
)
v. ) Appeal No. 01965465
) Agency No. 1B-012-1022-94
William J. Henderson, ) Hearing No. 160-95-8223X
Postmaster General, )
United States Postal Service, )
(N.E./New York Metro Region), )
Agency. )
________________________________)
DECISION
On July 12, 1996, appellant timely appealed the final decision of
the United States Postal Service (agency), received on June 17, 1996,
concerning her complaint alleging discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et
seq. The Commission accepts this appeal in accordance with the provisions
of EEOC Order No. 960.001.
On February 22, March 21, and May 31, 1994, appellant filed formal
complaints alleging that the agency discriminated against her based on
sex (female), and/or in retaliation for prior EEO activity when: (1) on
January 12, 1994, appellant was subjected to a hostile work environment
in the form of derogatory remarks and threatening behavior;<1> (2) on
February 16, 1994, appellant received a job discussion; (3) on March 4,
1994, appellant's Workers' Compensation claim was contested by the agency;
and (4) on April 15, 1994, appellant's supervisor allegedly harassed and
taunted her by making derogatory remarks. Appellant's complaints were
consolidated and accepted for investigation by the agency. Thereafter,
appellant requested a hearing before an EEOC administrative judge (AJ).
A hearing was held on November 28, and 29, 1995. On May 20, 1996,
the AJ issued a recommended decision finding that appellant was
discriminated against on the basis of sex(female)<2> when between
January 12, 1994 through April 15, 1994, her supervisor subjected
her to a hostile work environment in the form of derogatory remarks,
and one act of threatening behavior in an effort to force appellant to
voluntarily transfer from the dock area where she worked. In addition,
the AJ recommended a finding of no discrimination regarding appellant's
remaining issues. On June 14, 1996, the agency issued a final decision
rejecting the AJ's recommended finding of hostile work environment
discrimination based on sex(female) and concluded that appellant was
not subjected to any discrimination.
During October 1993, appellant began her tenure as a Mail Handler, in the
Bulk Mail Center (BMC) outbound dock, under the direct supervision of the
alleged discriminating official (ADO). Appellant testified that the ADO
never addressed her by name and always referred to appellant as "Girl"
and/or "Little Mail Handler". Appellant perceived both references as
derogatory. Appellant also testified that the ADO made comments noting
that working on the docks was "dirty bull work and that it wasn't for
a woman to be doing that."
On January 12, 1994, the dock areas experienced heavy mail volume,
so appellant requested assistance from the ADO. The ADO responded,
"tough," and refused to grant assistance. Thus, appellant requested a
union steward. Appellant stated that she could hear the ADO "hollering"
and "screaming" at the union steward telling him that appellant could
not handle the job because she was a woman and that appellant did not
belong on the dock. Appellant further stated that later that day she had
a conversation with the ADO in which the latter claimed that appellant
should "bid" off the docks because appellant could not handle "dock" type
of work. Additionally, appellant testified that she was standing inside
a postal van when the ADO allegedly came towards her in a threatening
manner with a "walkie-talkie" radio in-hand. In response to the ADO's
alleged threat in the van, appellant screamed and the ADO turned around
and told appellant that she was crazy.
Appellant testified that on February 15, 1994, she met with an EEO agency
official and the ADO was very angry about the meeting and among other
things called appellant a "baby" and a "crier". On February 16, 1994, the
ADO held a job discussion with appellant and her union representative.
The job discussion concerned an incident where appellant cleared her
throat as a signal to other co-workers that she was entering a postal
van with the ADO. Appellant testified that she confirmed the ADO's
observations, and acknowledged that the male Mail Handlers knew that she
was afraid of the ADO based on what had happened on January 12, 1994.
Therefore, they agreed that appellant was to signal them by clearing her
throat very loudly and they would come over and stand near appellant if
the ADO entered the van. After the discussion, appellant testified that
she was followed and intimidated by the ADO. As a result, appellant
requested to see the agency's nurse. On her way to the nurse's office,
the ADO taunted appellant with statements such as "You little baby.
You little whiner" and "You can't handle the job, now you can't handle the
pressure." Appellant returned to work on February 17, 1994, and requested
a CA-1 postal form so that she could file a work-related injury claim
for stress. Appellant stated that the ADO provided the injury forms and
called appellant a "baby" and threatened that "[appellant was] going to
pay for this."
Appellant filed a Workers' Compensation injury claim on the basis of being
"really stressed" due to the ADO's alleged harassment. The ADO issued
a recommendation by memorandum to the Office of Workers' Compensation
Programs stating that the agency should deny appellant's injury claim
because among other things, "[Appellant] has become confrontational at
every opportunity to the point of harassing [the ADO]...the stress..could
well be from her personal life." Appellant testified that subsequent
to the March 4, memorandum, the ADO continued to call appellant "Girl."
Appellant testified that on April 15, 1994, the ADO asked why appellant
was 15 minutes late reporting to work. Appellant stated that she was
not late. The ADO then threatened to issue a letter of warning if
appellant was "one minute late coming in on punching [the time clock]."
Appellant also testified that the ADO followed her to the restroom
and stood outside noting the amount of time appellant spent therein.
During August of 1994, the ADO left her position as dock supervisor and,
according to appellant the alleged harassment ended.
The ADO appeared at the hearing and expressly denied making any of
the statements alleged by appellant on January 12, 1994. She further
denied making any derogatory comments such as calling appellant "Girl",
and the ADO denied making any physical threats towards appellant.
Regarding the ADO's February 16, 1994, job discussion with appellant, the
ADO testified she had the discussion because she perceived appellant's
behavior, i.e. appellant clearing her throat; distancing herself and
refusing to speak to the ADO, and yelling that she was afraid of the ADO,
as harassing her (ADO) as a supervisor. The ADO acknowledged that her
March 4, 1994, memorandum challenged appellant's Worker's Compensation
claim. Also, the ADO admitted that her March 4, memo erroneously accused
appellant of performing an act of fraud with regards to appellant
writing on the agency's Authorization for Medical Attention form.<3>
Finally, the ADO confirmed that she confronted appellant concerning
her whereabouts on April 15, 1994. She explained that she was trying
to reorganize and this required canvassing the most senior employees
as to their preferences in work assignments. According to the ADO,
after appellant had picked her work assignment on April 15, she began
talking to a co-worker and yelled "leave me alone" to the ADO, when the
ADO told appellant to stop talking and return to work.
In his recommended decision, the AJ noted that appellant's and the
ADO's respective testimony at the hearing presented great differences
and outright denials concerning major factual facets pertaining to the
issues in the instant complaint. Thus, he made specific credibility
determinations based upon witness testimony and demeanor as well as
consideration of available corroborating testimonial and/or documentary
evidence. In so doing, the AJ found that the ADO was not a credible
witness and found that appellant and the union steward were "extremely"
credible. He further concluded that appellant's and the union stewards's
testimony at the hearing was consistent and believable. As a result
of his credibility determinations and based upon the totality of the
circumstances presented on the record, the AJ made the following factual
findings:
(1) the ADO did express the opinion that a "female" could not perform
the job duties of a dock worker at the BMC;
(2) the ADO was of the true opinion that a "female" could not perform
the job duties of a dock worker;
(3) on January 12, 1994, the ADO utilized a physical act to further
harass appellant as part of a practice designed to force appellant's
voluntary transfer from the dock area because appellant was "female;"
(4) on April 15, 1994, the ADO threatened to issue a letter of warning
if appellant was "...one minute late coming in on punching [the time
clock]..." and the ADO followed and stood outside the restroom noting
the amount of time appellant spent therein; and
(5) the ADO called appellant "Girl," "Little Mail Handler" "Little Baby,"
and "Little Whiner." The name calling was part of a taunting practice
designed to force appellant's voluntary transfer from the dock area
because appellant was "female."
Citing legal authority holding that in cases where the plaintiff
presents direct evidence of discrimination, use of the McDonnell Douglas
Corporation v. Green, 411 U.S. 792 (1973) test is inappropriate, the
AJ found that the above evidence was direct evidence of the agency's
liability on the basis of sex. See EEOC Policy Guidance on Recent
Developments in Disparate Treatment Theory, No. 915.002, July 14, 1992,
Section III. Therefore, the AJ concluded that appellant was discriminated
against on the basis of her gender (female) when between January 12,
1994, through April 15, 1995, appellant was subjected to a hostile work
environment in the form of derogatory remarks, and one act of threatening
behavior in an effort to force appellant's voluntary transfer from the
dock area because of her sex (female).
Notwithstanding his finding of discrimination, the AJ found that appellant
was not discriminated against with regard to her remaining issues.
Specifically, with regard to the job discussion, the AJ found that
the incident was not a disciplinary action. Thus, appellant was not
aggrieved with the meaning of Title VII. However, assuming appellant
was aggrieved by the action, and assuming appellant had established a
prima facie case on both sex and retaliation bases, the AJ found that
the ADO was correct in her perception that appellant was clearing her
throat in order to signal to other co-workers on the dock. Finding that
appellant's behavior was wrong, the AJ concluded that appellant failed
to prove that she was discriminated against as alleged when she was
subjected to a job discussion.
As for the issue involving the ADO's March 4, 1994, memorandum opposing
appellant's Workers' Compensation injury claim, the AJ found tat appellant
failed to introduce any persuasive evidence that the memorandum was
issued because of appellant's gender or that any similarly situated male
employee had received preferential treatment with regard to such claims.
As for appellant's claim that the memorandum was an act of retaliation,
the AJ found that appellant's unilateral decision to file an injury claim
was not protected activity within the meaning of Title VII. Assuming
that appellant had established a prima facie case on the bases alleged,
the AJ found that appellant had not proven that the ADO's personal views
regarding appellant's injury and her views that appellant was an alleged
harasser were pretext.
Finally, regarding appellant's final issue, the AJ concluded that the
mere act of calling appellant a "whiner, "little baby," etc. without more
in this one instance, does not constitute an adverse personnel action.
Assuming appellant had established a prima facie case of reprisal
discrimination the AJ concluded that there was not evidence that the ADO
continued to taunt appellant after the April 15, 1994 incident because
of her prior EEO activity, i.e. contacting an EEO counselor with regard
to Issue #1 (hostile environment claim).
After a thorough review of the record, including the hearing transcripts
and the parties statements on appeal, the Commission finds that the AJ
correctly set forth the facts giving rise to the complaint and the law
applicable to the case. We particularly note the agency's argument
asserting that the "few acts" cited by appellant do not amount to
behavior that is sufficiently severe or pervasive as to alter the
conditions of appellant's employment and create an abusive or hostile
working environment. We find that appellant credibly testified that
she was taunted with derogatory remarks by the ADO consistently from
January 12, 1994, through April 15, 1994. Appellant's testimony
asserted more than a few acts during this period since she provided
that the ADO used derogatory terms on a daily basis. Furthermore,
the AJ found that appellant presented direct evidence to support her
hostile work environment. Also, the AJ found that the ADO committed
one physical threatening act against appellant on January 12, 1994.
In light of these findings, the Commission finds no discernable basis
on which to disturb the AJ's finding of discrimination. Accordingly, it
is the decision of the Equal Employment Opportunity Commission to concur
with the AJ's recommended decision and find that appellant has proven that
she was subjected to a hostile work environment on the basis of her sex
(female) as part of the ADO's continuous effort to force appellant to
voluntarily transfer from the dock area where she worked. Therefore,
it is the decision of the Equal Employment Opportunity Commission to
REVERSE the final agency decision in part and AFFIRM the agency's final
decision in part.
We now turn to the relief to which appellant is entitled. Where
discrimination is found, the injured party is to be placed, as near as
may be, in the situation she would have occupied if the wrong had not
been committed. Albemarle Paper Company v. Moody, 422 U.S. 405, 418-19
(1975). Appellant contends that she is entitled to compensatory damages
for emotional distress. Under Section 102 of the Civil Rights Act of
1991 (CRA), compensatory damages may be awarded for pecuniary losses,
emotional pain, suffering, inconvenience, mental anguish, and loss
of enjoyment of life. Therefore, the agency is ordered to conduct a
supplemental investigation pertaining to appellant's entitlement to
compensatory damages. The agency shall comply with the following order.
ORDER
The agency is ORDERED to take the following remedial action:
1. Within forty-five (45) days of receipt of this decision the agency
shall conduct a supplemental investigation pertaining to appellant's
entitlement to compensatory damages incurred as a result of the agency
subjecting appellant to a hostile work environment from January 12,
1994 through April 15, 1994. The agency shall afford appellant sixty (30)
days to submit objective evidence showing that she incurred compensatory
damages and that the damages were related to the unlawful discrimination
found in this case. Failure to submit the evidence within 30 days will
be considered a waiver of such an award unless appellant can show that
circumstances beyond her control prevented a response within the time
limit.
2. The agency shall post copies of the attached notice at the Springfield
BMC, Springfield, Massachusetts, postal facility. 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.
3. The agency shall provide training in the obligations and duties
imposed by Title VII to the supervisors responsible for the instant
action.
4. 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 appellant,
including evidence that the corrective action has been implemented.
ATTORNEY'S FEES (H1092)
If appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
Oct 2, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations
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 al. 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 PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The Springfield BMC, Springfield, Massachusetts, postal 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 Springfield BMC, Springfield, Massachusetts, postal facility, has
remedied the employee affected by the Commission's finding by awarding
her any proven compensatory damages, attorney fees, and by providing
training for all supervisory employees who were responsible for the
discrimination. The Springfield BMC, Springfield, Massachusetts,
postal 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.
The Springfield BMC, Springfield, Massachusetts, postal 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 Appellant does not allege reprisal discrimination with regard to this
claim.
2 The AJ used the term "gender (female) in his recommended decision.
However, for the purposes of our decision we will use sex (female)
as the defined basis.
3 The ADO in her March 4, 1994, memo accused appellant of writing the
words "stressed out." However, it was later learned that the agency's
nurse had noted that information on the form.