01A11289
09-09-2002
Linda A. Seth, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.
Linda A. Seth v. United States Postal Service
01A11289
September 9, 2002
.
Linda A. Seth,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 01A11289
Agency No. 4-G-770-0323-98
Hearing No. 330-A0-8067X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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.; Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq<1>.; and the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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 order.
BACKGROUND
The record reveals that complainant, a Modified Clerk, PS-5, at the
agency's Spring, Texas facility, filed a formal EEO complaint on March
13, 1998, alleging that the agency had discriminated against her on
the bases of race (Caucasian), sex (female), color (White), disability
(back/neck), age (D.O.B.: September 16, 1956), and reprisal for prior
EEO activity, when:
she was denied a bid on a job assignment; and
the agency allowed a hostile environment to exist at the station where
she worked.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ found that when complainant was a letter carrier, she had been
injured on the job. Also, that after complainant had returned to work,
the Office of Workers' Compensation Programs (OWCP) determined that she
should return to work as a �rehab� employee in the clerk craft. Further,
the AJ found that complainant had had two back surgeries, had protruding
disks in her back, and a neck injury. Also, complainant was limited to
lifting ten pounds or less, could not sit or stand for extended periods,
and was required to take breaks as needed. Complainant worked as a window
clerk for a year, but those duties were too arduous, thereafter, she was
placed in the Box Section where she did paperwork, rented out boxes, wrote
certified receipts, as well as other work. Thereafter, she answered the
phones, ordered supplies, processed passport applications, and other work.
Concerning claim 1, complainant alleged that she was discriminated
against when the agency did not allow her to bid and receive a position
as a distribution window clerk, which position she indicated she could
perform with accommodation.<2> The station where complainant wished to
work had a store-front retail center, where a clerk takes money for the
purchase of stamps and other retail merchandise. Complainant wanted to
be assigned to a store-front retail center as an accommodation, because
at the retail center, she would not have to do any heavy lifting and
could sit on a stool, as needed.
The AJ found that complainant could not perform the duties of the position
because of the lifting requirements, and also found that the agency did
not have such a specific position designated for the store-front retail
center. The AJ concluded that complainant established that she had a
disability but failed to establish that she was qualified to perform
the essential functions of the position, with or without accommodation,
because complainant was to be on �office duties�, as determined by OWCP,
and because complainant could not perform the functions of the position.
Concerning claim 2, complainant alleged that the agency allowed a
hostile environment to exist. Complainant alleged that the hostile
work environment lasted over a considerable period of time, through the
tenure of at least four station managers, thirteen supervisors, and two
postmasters. Complainant further alleged that some of the events involved
supervisors, but most of the events involved co-workers. Complainant
alleged both sexual and non-sexual harassment, e.g., consisting of name
calling, snide remarks, foul language, sexual suggestive dancing, dirty
jokes, sexual comments, and pornographic material. Complainant also
alleged that ink was put on her desk, and lotion and water were put
on her things at her work area. Complainant further alleged that she
complained to management, and that nothing was done.
Concerning the non-sexual harassment, the AJ found that many of the events
may have occurred an many as six years prior to the date of complainant's
complaint; that complainant failed to timely and adequately take advantage
of the agency's complaint process, that the agency did investigate
the liquid incidents, and that the agency counseled co-workers through
�stand-up� talks when it was advised of allegedly harassing incidents.
Concerning sexual harassment and the creation of a hostile work
environment, the AJ found by the preponderance of the evidence that
complainant failed to establish that the agency was made aware, in a
timely manner, of most of the incidents so that the agency could take
effective action.
The AJ concluded that complainant had not shown discrimination because
of race, color, sex, age, disability and retaliation. The agency's
final order implemented the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the AJ erred when she did not
specifically address the issues of age discrimination, and submits
additional argument in support of her claim. The agency did not submit
any contentions on appeal.
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.
Claim 1 - Job Bid. A supervisor (S1) testified that the position in
question entails doing anything that is in the post office; work the
window, distribute the mail, work the Box Section, handle parcels,
handle presort, handle bundles of catalogs and magazines, dolly around
bundles; with items weighing over twenty pounds; help unload trucks, and
moving �crab� cages; and that the position required the taking of mail
trays and giving them to carriers, which would requiring lifting above
one's shoulder. S1 testified that complainant was not given the bid
because she was a �rehab� employee, and her restrictions were that she
could not lift over ten pounds and she could not reach above her shoulder.
A "qualified individual with a disability" is "an individual with a
disability who satisfies the requisite skill, experience, education
and other job-related requirements of the employment position such
individual holds or desires, and who, with or without accommodation,
can perform the essential functions of such position." 29 C.F.R. �
1630.2(m); see also 29 C.F.R. � 1630.3 Here the AJ essentially found that
complainant did not satisfy the requisite job-related requirements.
Also, the AJ found that complainant was basically requesting that
the agency invent a position for her, i.e., full time retail window
clerk assigned to a store-front retail center. Complainant was being
accommodated, and the Commission has long recognized that a complainant
is not necessarily entitled to the accommodation of her choice, but to
a reasonable accommodation. See Carter v. Bennett, 651 F. Supp. 1299
(D.D.C. 1987), aff'd 840 F.2d 63 (D.C. Cir. 1988); Alford v. United States
Postal Service, EEOC Appeal 01923658 (May 27, 1993). Also, the Commission
has recognized that an agency is not required to create a new position
to accommodate a disability. See McMullin v. U.S. Postal Service, EEOC
Petition No. 03930144 (December 16, 1993); See EEOC Enforcement Guidance:
Reasonable Accommodation and Undue Hardship Under the Americans With
Disabilities Act (March 1, 1999). p. 37. Given this analysis, we do not
accept complainant's contention that she was discriminated against when
the agency did not allow her to bid and receive the position.
While the AJ did not make a specific finding concerning age
discrimination, the Commission finds that the analysis set forth above
applies to the age discrimination claim by complainant that younger
employees, with or without disabilities, were allowed to bid on positions.
Claim 2 - Hostile Work Environment. S1 testified that she worked at the
facility for ten years, ending in 1997, and had never heard or saw the
conduct that complainant complained about, except for one instance of
inappropriate language on the dock, and she had reprimanded the offending
employee about that. Supervisor (S2) testified that he was a supervisor
for one year, but for personal reasons, returned to being a carrier.
S2 testified that he did not dance on the work floor; denied participating
in telling of dirty jokes; and denied that anyone ever came to him and
complained about the things that complainant was complaining about.
S2 testified that occasionally he heard foul language on the floor,
but it was never directed at anyone, and never heard anyone say anything
stronger than �damn.�
Supervisor (S3) testified that she never heard a co-worker make
inappropriate comments to complainant; that complainant never came to her
to complain about co-workers calling her names, and that complainant
never gave her anything in writing complaining about the things that
complainant testified about. S3 testified that no one came to her
and complained about co-workers telling dirty jokes, making derogatory
remarks, concerning sexually explicit pictures in the swing room, using
the copy machine to reproduce pornographic material, that pornographic
material was being passed around on the workroom floor, that they were
offended by dirty jokes, felt threatened in the workplace; or that former
supervisors had told dirty jokes and participated in foul language.
S3 testified that she did not tell dirty jokes or use foul language, and
had never heard other supervisors use foul language or tell dirty jokes.
A former Manager of Customer Services (M1) testified that he had been
a supervisor since 1981;
and that no clerk ever told him that they felt threatened that violence
would erupt; that he was not made aware that co-workers called complainant
inappropriate names; and did not hear a supervisor named by complainant
use foul language or tell dirty jokes. M1 testified that no one had ever
came to him and complained concerning the activities testified to about
by complainant; that no one ever complained about pornographic material,
except complainant; but that complainant did not initially name anyone
concerning the picture, so he had to give a �stand-up� talk informing
the employees about sexual harassment.
The new postmaster (P1) stated that he had not seen the pornography and
was only told by complainant that she had overheard foul language and
wanted it stopped. P1 also had the Violence and Work Place Coordinator
come to the office, as well as the Inspection Service.
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 patterned or pervasive. McKinney
v. Dole, 765 F.2d 1129, 1138- 1139 (D.C. Cir. 1985). For purposes of
our analysis, we will assume that harassment occurred and that a hostile
work environment was created. However, in order to prove a case of
harassment, the complainant must establish, by a preponderance of the
evidence, that there is a basis for imputing liability to the employer.
Henson v. City of Dundee, 682 F.2d 987, 903-05 (11th Cir. 1982).
Where, as here, harassment is alleged by co-workers, an employer is
liable if it knew or should have known of the misconduct and failed to
take immediate and appropriate corrective action. Policy Guidance on
Current Issues of Sexual Harassment, EEOC Notice No. N-915-050 at 29-30
(March 19, 1990); Owens v. Department of Transportation, EEOC Request
No. 05940824 (September 5, 1996).
Concerning co-workers' harassment, the AJ found that there was no
evidence that complainant ever identified the offending co-workers,
and that many of the complaints involved incidents six years prior to
the date of complainant's complaint.
Concerning allegations against supervisors, the Commission distinguishes
between harassment that results in a tangible employment action and
harassment that creates a hostile work environment. See Burlington
Indus. v. Ellerth, 524 U.S. 742, 760-65, 118 S.Ct. 2257, 141 L.Ed.2d 633
(1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275,
141 L.Ed.2d 662 (1998); EEOC Enforcement Guidance: Vicarious Liability
for Unlawful Harassment by Supervisors (June 18, 1999). In Ellerth and
Faragher, the Supreme Court made clear that employers are subject to
vicarious liability for unlawful harassment by supervisors. The standard
of liability set forth in these decisions is premised on two principles:
1) an employer is responsible for the acts of its supervisors; and 2)
employers should be encouraged to prevent harassment and employees should
be encouraged to avoid or limit the harm from harassment. In order to
accommodate these principles, the Court held that an employer is always
liable for a supervisor's harassment if it culminates in a tangible
employment action.<3> However, if it does not, the employer may be
able to avoid liability or limit damages by establishing an affirmative
defense that includes two necessary elements: (a) the employer exercised
reasonable care to prevent and correct promptly any harassing behavior;
and (b) the employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer or to
avoid harm otherwise.
Here, since the Commission finds that because the harassment did not
result in a tangible employment action being taken against complainant,
agency liability for supervisors' actions will be determined by an
examination of this two prong defense. Whether an employer can prove
the first prong of that defense, i.e., that it exercised reasonable care
to prevent and correct promptly any sexually harassing behavior, depends
on the circumstances of the particular situation. Vicarious Liability
Guidance, at 15. At a minimum, however, the employer must have a
policy and complaint procedure against the harassment. Here, the AJ
found that the agency has a specific policy against sexual harassment
and has done training in that regard. Further, the AJ found that the
procedures for bringing EEO complaints, including those involving sexual
harassment, was published, and complainant had testified that she had
previously filed EEO complaints. The AJ also found that the agency gave
many �stand-up� talks to employees concerning inappropriate behavior.
The agency also provided a Postal Inspector for an investigation, and a
special team to investigate the sexual harassment charges. Therefore,
we concur with the AJ that the agency has established the first prong
to the affirmative defense.
Furthermore, we concur with the AJ that the agency has established
the second prong as well, i.e., that the complainant unreasonably
failed to take advantage of preventive or corrective opportunities.
The AJ found that the preponderance of the evidence did not establish
that complainant made the agency aware in a timely manner of most of
the incidents so that it could take effective action. The AJ found
that complainant waited in some cases six to ten years to complain
about inappropriate conduct. The AJ found that complainant failed to
give the agency complete disclosure concerning incidents. And that
complainant initially refused to tell the agency the name of allegedly
offending employees. In light of the above, we concur with the AJ that
the agency has established its affirmative defense.
CONCLUSION
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We discern no
basis to disturb the AJ's decision. 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 affirm the agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 9, 2002
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 The position was also described as �distribution markup clerk�,
which would require heavy lifting, and would not be a full time window
clerk position.
3 The only tangible employment action concerns the bid position which
was previously analyzed.