0120080466
08-23-2010
Kimberlee Ketring, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Kimberlee Ketring,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 0120080466
Hearing No. 470200700073X
Agency No. 4C450007506
DECISION
On November 6, 2007, Complainant filed an appeal from the Agency's September 18, 2006, final order concerning her equal employment opportunity (EEO) complaint alleging 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 Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order, in part and REVERSES, in part.
ISSUE PRESENTED
Whether the EEOC Administrative Judge (AJ) erred in finding that Complainant was not subjected to unlawful discrimination based on reprisal for engaging in protected EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier at the Agency's Lebanon Post Office in Lebanon, Ohio. In December 2005, Complainant's Supervisor (S1) improperly installed a seat in her postal vehicle. On December 30, 2005, while Complainant was casing mail, two male coworkers were talking behind her. One of the male coworkers asked if she had "bent over for him yet," and said that something smelled like "fish." On December 31, 2005, Complainant overheard a conversation between S1 and another employee. During this conversation, S1 commented about his music band and stated that women throw their underwear at him on stage. On January 6, 2006, S1 showed Complainant a video clip of his band. In the video, S1 was making gestures and using language that Complainant thought was offensive. After the video, Complainant stayed in S1's office for 45 minutes commenting about the video and his band.
On January 1, 2006, a coworker (CW1) told Complainant that he thought her boots were sexy. On January 19, 2006, CW1 asked Complainant if she wanted to get some wine and cuddle on his couch. Complainant told CW1 that she was not interested because she was married. On February 4, 2006, S1 stated on the workroom floor that Complainant and another female coworker (CW2) were having a "g-string" contest. On February 10, 2006, someone placed a cardboard cross on the case. A coworker picked up the cross and started to swing it, stating that he was fighting off witches. On February 22, 2006, CW2 exposed her underwear to S1.
On March 27, 2006, S1 showed Complainant pictures of his band. In the pictures, S1 was making gestures with the microphone that Complainant thought were obscene. On April 8, 2006, as Complainant entered the building, CW1 yelled, "Man candy, I could just eat that up." On the same day, S1 commented that CW2 was wearing a "g-string." On May 13, 2006, S1 asked Complainant if she like another coworker better because he was "so large." Complainant responded, "Yeah, he's tall." On May 29, 2006, while on the workroom floor, S1 referred to Complainant and CW2 as two stupid blondes. On June 9, 2006, CW1 commented to Complainant that she was not wearing her wedding ring, and proceeded to ask her if she would accompany him to Florida.
On June 10, 2006, Complainant was initially scheduled for four hours of mail delivery on route 11. Upon returning from route 11, Complainant's second level supervisor (S2) told Complainant that she would have to perform an additional route, which was route 2. Complainant, however, refused to perform the additional route due to an appointment for her shoulder injury. On June 10, 2006, Complainant, for the first time, notified management of her harassment allegations. On that day, she told S2 and later, his supervisor, S3.
Also, on June 10, 2006, after finding out from S3 that Complainant was taking EEO action, S2, at his supervisor's direction, contacted Labor Relations to begin the process of terminating her. S2 reported to Labor Relations that Complainant had failed to show up for work on June 8, 2006, and had failed to call to report her absence on that day.1 S2 also reported to Labor Relations that Complainant had refused an hour of work on June 10, 2006, for not performing the additional route. On June 15, 2006, Complainant contacted an EEO specialist. On June 21, 2006, S2 asked Complainant to resign, but she was subsequently terminated.2 Complainant filed a grievance and was reinstated by the Agency, but was transferred to another postal facility.
On September 9, 2006, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), religion (Christian), and reprisal when from December 10, 2005, through June 21, 2006, she was subjected to harassment and terminated from her employment.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an AJ. Complainant timely requested a hearing and the AJ held a hearing on August 7, 8, and 16, 2007, and issued a decision on September 18, 2007. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
Specifically, the AJ determined that the sexual conduct towards Complainant was not sufficiently severe and pervasive enough to constitute as unlawful sexual harassment. In this regard, the AJ noted that S1's comment referring to the size of an employee was not sexual in nature because Complainant's response indicated that there was no sexual component to the conversation. In regards to S1's comment that women throw their underwear at him, the AJ found that this comment was not made to or about Complainant. The AJ noted that since Complainant overheard S1 make this comment to other employees, it had no effect on her. In regards to S1 showing a video clip of his band, the AJ found that Complainant's actions demonstrated that she was not so offended. The AJ noted that Complainant later went to see S1's music band and remained in S1's office for 45 minutes after the video clip was over. In regards to S1's comments about "g-strings" and S1's comment that Complainant was a stupid blonde, the AJ found that the comments were not frequent, severe, physically threatening, or an unreasonable interference with Complainant's work performance.
The AJ also found that CW1's comments to Complainant were not severe or pervasive enough to constitute as actionable harassment. In this regard, the AJ noted that CW1 made comments about Complainant's appearance and asked to spend time with her romantically on more than one occasion. However, the AJ noted that since CW1's actions were spread over a six month period they were not frequent or severe enough to constitute as actionable sexual harassment. In regards to CW2's actions, the AJ found that her conduct was not based on sex and was also not sufficiently severe or pervasive enough. Therefore, the AJ found that Complainant was not subjected to unlawful sexual harassment. The AJ also noted that Complainant did not report any of the alleged harassment to management at any point prior to her termination.
In regards to disparate treatment, the AJ found that the Agency articulated legitimate nondiscriminatory reasons for its actions. In particular, the AJ found that S2 told Complainant that she must perform the additional route or lose her job. When Complainant failed perform the route, S2 made the decision to discipline her. Also, the AJ noted that Complainant was also asked to resign because she failed to show up for work on June 8, 2006, and had failed to call to report her absence on that day.
Finally, the AJ found that Complainant failed to show pretext for discrimination. The AJ noted that Complainant alleged that the decision to terminate was made immediately after she contacted the EEO specialist. The AJ found, however, that Complainant was mistaken, and that S2's decision to terminate her was not made immediately after she contacted the EEO Specialist. The AJ found that S2's decision to terminate was made before her June 15, 2006 contact with the EEO specialist, because S2 sent the information for termination to Labor Relations on June 10, 2006, which was prior to her EEO contact. In this regard, the AJ noted that S2 could not have known of Complainant's EEO contact prior to June 15, 2006.
CONTENTIONS ON APPEAL
On Appeal, Complainant contends that the AJ did not take the witnesses that testified on her behalf into consideration. Complainant also noted that these witnesses testified that management discussed women's underwear and "g-strings," and a "g-string" contest. Complainant indicates that she felt humiliated by the comments that were made to her. Complainant also alleges that the Agency did not follow its procedures in regards to vehicle safety. Complainant alleges that these incidents of harassment took place shortly after she reported these safety issues to management.3
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. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
Reprisal
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473 (November 20, 1997), Complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
Initially, we note that the AJ found in his decision that Complainant contacted the EEO specialist on June 15, 2006. As such, the AJ found that S2 could not have known of Complainant's EEO contact prior to June 15, 2006. As the record reflects, however, S2 thought, albeit incorrectly, that Complainant had filed an EEO complaint prior to June 15, 2006. S2 testified that he found out on June 10, 2006, from S3 that Complainant had discussed her EEO complaint with him. S2 testified as follows:
Q: When did you first become aware that [Complainant] had filed an EEO complaint?
A: I believe the date was June 10th . . . I reported to my immediate supervisor. He told me to check with Labor as far as possible discipline as far as [Complainant] goes because of her refusal to work, and that time he said, "Well, she was just in here a little earlier and filed an EEO Complaint."
Hearing Transcript (Hr'g Tr.) 527.
Based upon the record as noted above, we find that the AJ erred as a matter of law because on June 10, 2006, S2 was, at the very least, aware that Complainant had engaged in EEO activity. Immediately thereafter, S2 contacted Labor Relations in order to terminate Complainant. Therefore, S2 knew of Complainant's EEO activity prior to June 15, 2006. Moreover, June 10, 2006, was the first time Complainant told S2 and later S3 about her allegations of harassment.
Accordingly, we find that Complainant established a prima facie case of retaliation. Complainant engaged in protected EEO activity when she talked to her superiors on June 10, 2006, about her harassment allegations and subsequently contacted the EEO specialist on June 15, 2006. S2 was already aware of Complainant's concerns when, on June 10, 2006, S3 indicated that Complainant had also spoken to him about her harassment allegations and was initiating the EEO process. Complainant subsequently was terminated from employment on June 21, 2006. Thus, we find a nexus between the protected activity and Complainant's termination. The record reflects that the EEO process was ongoing when S2 terminated Complainant from employment.
The Agency articulated legitimate, nondiscriminatory reasons for Complainant's termination. S2 testified that he decided to terminate Complainant due to her refusal to work route 2 on June 10, 2006. Hr'g Tr. 536-538. S2 testified that when Complainant returned from performing route 11, he asked her to also perform route 2, but she refused because she had an appointment. Hr'g Tr. 537. S2 testified the following:
[Complainant] said no. [Complainant] said she had an appointment. Then [Complainant] went into the fact that she had a shoulder injury . . . that's when she started complaining about sexual harassment and other things.
Hr'g Tr. 537.
To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). We find that Complainant established, by the preponderance of the evidence, that the Agency's articulated reason for its actions was a pretext for retaliation. Specifically, the record reflects that S2 decided to terminate Complainant immediately after she complained to him and S3 about her sexual harassment allegations and he found out that she was going to engage in the EEO process. Prior to that time, we find no persuasive evidence that termination was contemplated.
Accordingly, we find that Complainant has established that she was retaliated against when she was terminated, effective, June 21, 2006.
Sexual Harassment
In determining whether the conduct at issue rises to the level of a hostile environment, the harasser's conduct should be evaluated from the objective standpoint of a reasonable person. Policy Guidance on Current Issues of Sexual Harassment, Notice No. 915.050 (March 19, 1990) provides that the following factors are pertinent to the inquiry: (1) whether the conduct was verbal or physical, or both; (2) how frequently the conduct was repeated; (3) whether the conduct was hostile and patently offensive; (4) whether the alleged harasser was a co-worker or a supervisor; (5) whether others joined in perpetrating the harassment; and (6) whether the harassment was directed at more than one individual. Id.
A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe. Harris v. Forklift Systems Inc., 510 U.S. 17, 21 (1993). Whether the harassment is sufficiently severe to trigger a violation of Title VII 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. Id. at 17.
We find that the AJ's decision that Complainant was not subjected to a sexually hostile work environment is supported by substantial evidence. Regarding S1's comments to Complainant, we concur with the AJ that, however inappropriate, they were not frequent, severe, physically threatening, or an unreasonable interference with Complainant's work performance. The record establishes that S1 only subjected Complainant to a few offensive comments over a six month time period. The Commission has repeatedly found that claims of a few isolated incidents of alleged harassment usually are not sufficient to state a harassment claim. See Phillips v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Health and Human Services, EEOC Request No. 05940481 (February 16, 1995).
In regards to CW1's inappropriate comments, the record establishes that there were only six incidents regarding his comments over a six month time period. As such, we concur with the AJ that they were not frequent, severe, physically threatening, or an unreasonable interference with Complainant's work performance. In regards to CW2's comments and other comments made, we concur with the AJ that they were also not sufficiently severe or pervasive to constitute as a hostile work environment. Also, we note that regarding the harassment by coworkers, the Agency is liable if it knew or should have known of the misconduct and failed to take immediate and appropriate corrective action. See Policy Guidance on Current Issues of Sexual Harassment. Here, the record establishes that Complainant never made the Agency aware that she was being subjected to harassment from CW1, CW2, or any other coworker until June 10, 2006, which was more than five months after the first incident took place. As such, the Agency was never given the opportunity to take corrective action.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final order, in part, and REMAND this case to the Agency to take remedial actions in accordance with this decision and Order below.
ORDER
The Agency is ordered to take the following remedial actions:
1. The Agency shall determine the appropriate amount of back pay with interest, if any, and/or other benefits due Complainant, consistent with 5 C.F.R. � 550.805 less any appropriate offsets.4
2. The Agency shall provide EEO training to all managers at Lebanon Post Office in Lebanon, Ohio. The training shall place special emphasis on the Agency's obligation to prevent retaliation and interference with the EEO process. The Commission does not consider training to be a disciplinary action.
3. The Agency shall consider taking disciplinary action against the responsible management officials. The Agency shall report its decision within thirty (30) calendar days. If the Agency decides to take disciplinary action, it shall identify the actions taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline.
4. The Agency shall undertake a supplemental investigation to determine Complainant's entitlement to compensatory damages under Title VII. The Agency shall give Complainant notice of her right to submit objective evidence (pursuant to the guidance given in Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993) and request objective evidence from Complainant in support of his request for compensatory damages within forty-five (45) calendar days of the date Complainant receives the Agency's notice. No later than ninety (90) calendar days after the date that this decision becomes final, the Agency shall issue a final Agency decision addressing the issue of compensatory damages. The final decision shall contain appeal rights to the Commission. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth below.
5. The Agency shall post the attached notice, as detailed below.
The Agency is further directed to submit a report of compliance, as is provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action listed in this order has been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post at its Lebanon Post Office in Lebanon, Ohio 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 (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), 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 (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
_____8/23/10_____________
Date
1 Conversely, Complainant testified that she had called to report her absence from work on that day.
2 Management was under the mistaken assumption that Complainant was a probationary employee. After her termination, the Agency determined that Complainant was not a probationary employee.
3 The Commission has the discretion to review only those issues specifically raised in an appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, 9-10 (November 9, 1999). Because Complainant does not specifically contest the AJ's finding regarding her allegation of religious discrimination we will exercise our discretion and not address that matter in the decision herein.
4 Because Complainant's termination was overturned pursuant to the grievance process, we do not find it necessary to order her reinstatement.
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0120080466
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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