Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Aug 20, 2013

0120120427 (E.E.O.C. Aug. 20, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.

Appeal No. 0120120427

Hearing No. 430-2010-00420X

Agency No. 1K-271-0007-10

DECISION

On October 22, 2011, Complainant filed an appeal from the Agency’s September 23, 2011
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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 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 REVERSES the Agency’s final order.1

BACKGROUND

At the time of events giving rise to this complaint, Complainant (C2) and two co-workers, C1
and C3, were female limited duty employees assigned to the Processing and Distribution
Center (P&DC) in Greensboro, North Carolina. They worked together, sitting at the PARS
table, sorting through “waste” mail.2

1 This decision on appeal is being issued concurrently with decisions in EEOC Appeal Nos.
0120120339 & 0120120510.
At some point in the Spring of 2009, an automation
clerk who worked on the DCBS machines came to their attention due to his attire. More
specifically, this individual (G) wore shorts which, according to C1, C2 and C3, he wore in a
manner that significantly outlined and occasionally exposed his penis. G would roll the waist
of his shorts up so that the shorts were tighter around the crotch; sometimes wear shorts that
2 PARS stands for Postal Automated Redirection System.
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were too small; and often go without underwear. By the Fall of 2009, C1 and C2 complained
to management that G was parading around, alternating between erections and exposed
genitalia. When questioned by two supervisors and a manager, G explained that his shorts
might look tight because he carried a water bottle in his pocket.

In October 2009, the manager notified a Human Resource Manager (HRM) who, along with a
Workplace Harassment Coordinator, decided that a fact finding investigation was in order.
This was completed by two individuals who did not work at the P&DC. The HRM determined
that their investigation was deficient because the only individuals interviewed were C1, C2,
C3, G, and one of the supervisors. Approximately two months later, another fact finding was
initiated and commenced by a “certified fact finding investigator” who interviewed C1, C3,
and G. However, at some point the HRM instructed this individual to stop the investigation.
It was ultimately concluded in March 2010 by two different individuals who also did not work
at the P&DC. G was re-interviewed, and Complainant’s representative, a mail handler, and
another female who worked at the PARS table were also interviewed. In June 2010, HRM
sent a letter to Complainant stating that her claim of sexual harassment had not been
substantiated.

On April 15, 2010, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (Caucasian), sex (female), disability, age (59),
and in reprisal for prior protected EEO activity. Although Complainant very clearly alleged
that she was being subjected to sexual harassment, the Agency framed the claim to suggest that
the real issue was management’s failure to appropriately investigate her allegation. 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 EEOC Administrative Judge
(AJ). Complainant timely requested a hearing and the AJ held a hearing on August 8-9, 2011,
and issued a decision on September 14, 2011.

In her decision, the AJ found first and foremost that the Agency failed to conduct its
investigation appropriately by failing to do it “promptly” and failing to “follow up” with
Complainant. She then turned her analysis to whether Complainant established she was
subjected to a sexually hostile work environment and concluded that Complainant did not. In
reaching this conclusion, the AJ found that:

at times, the employees at the PARS table were able to see the outline of G’s
genitalia inside his shorts. This happened when he wore shorts that were too
short/tight; rolled up his shorts; and walked around with his hands in his
pockets. I find that Complainant and the employees at the PARS table could
sometimes identify G's penis within his shorts because he was not wearing
anything underneath his shorts. I find that Complainant and the others believed
that they saw G with an erection or partial erection on several occasions. I did
not find G's testimony credible on these points because it was contradicted by
the testimony of employees who worked at the PARS table. C1, C2, C3 and
another PARS table employee testified consistently on these points.
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AJ decision at 7-8. However, the AJ determined that G’s conduct was not sexual. To the
extent, C1 testified that it was sexual, the AJ found her belief to be “speculative” since there
was no evidence that G made any sexual advances towards C1, C2 or C3. The AJ also found
that G did not “parade around” as alleged; rather because C1, C2 and C3 sat at the PARS
table, his groin area was in their line of sight. The AJ also found that although Complainant
was offended by G, she failed to prove that male employees would also not be offended,
thereby defeating a finding that G’s conduct was based Complainant’s sex.

Further, the AJ found that even if the conduct was sexual and based on sex, it was not severe
or pervasive enough to create a hostile or abusive work environment. This was because G did
not work with Complainant at the PARS table, nor was she required to look at his shorts and if
she did so, it would not be for more than a few seconds. The AJ also discredited their
testimony that Complainant felt threatened by G, describing it too as “speculative.”

Finally, the AJ concluded that Complainant failed to prove that the Agency’s failure to
properly investigate the harassment claim was motivated by her race, sex, color, disability, age
or protected activity. The AJ also determined that G did not retaliate against Complainant
when he walked by their table more frequently after she complained because his conduct could
not be considered an “adverse action.” 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.

STANDARD OF REVIEW

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).

ANALYSIS AND FINDINGS

To establish a case of sexual harassment, Complainant must show that: (1) she is a member of
a statutorily protected class; (2) she was subjected to unwelcome conduct related to her sex
including sexual advances, requests for favors, or other verbal or physical conduct of a sexual
0120120427

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nature; (3) the harassment complained of was based on her sex; (4) the harassment had the
purpose or effect of unreasonably interfering with her work performance and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability to the employer. The Agency is liable for the actions of a coworker if, once it learned
of Complainant's allegations, management failed to fulfill its obligation to take prompt
remedial action reasonably calculated to end the harassment and failed to take appropriate steps
to ensure that it would not recur.

The AJ found that G wore his shorts in a manner that made his penis prominently outlined and
sometimes visible and sometimes having the appearance of being erect. The AJ specifically
credited Complainant’s and other witness testimony to this over G’s denial. On appeal, the
Agency does not argue that Complainant’s testimony lacked credibility. Thus we accept the
AJ’s finding on this point. However, we find that the AJ erred in concluding that this was not
conduct of a sexual nature. While it may be true that G never even spoke to Complainant, he
wore his shorts in a manner that enabled his penis to be on display. We find this to be
inherently sexual conduct, and Complainant found it unwelcome. We disagree with the AJ’s
characterization of Complainant’s belief that G did this because she was female as too
“speculative.” Harassing conduct need not be motivated by sexual desire to support an
inference of discrimination on the basis of sex. Oncale v. Sundowner Offshore Services, Inc.,
523 U.S. 75, 80 (1988).

We further find that a reasonable person in Complainant’s position would find the conduct to
be sufficiently pervasive to create a hostile work environment. There is no suggestion in the
record that this occurred on one or two isolated occasions but rather continued over a period of
five to six months. As the AJ found, the Agency’s response was inadequate. The Agency
took over six months to conduct an investigation; did nothing to separate G from Complainant
during the investigation; and there is no evidence to suggest the Agency took any appropriate
steps to stop or ensure that G’s conduct would not recur. Thus, we conclude that the Agency
is liable for the harassment.

Given our conclusion that Complainant proved she was subjected to sexual harassment, we
need not address the other alleged bases as under the circumstances of this case, she would not
be entitled to any greater relief.

CONCLUSION

For the reasons set forth herein, we REVERSE the Agency’s final order and direct the Agency
to comply with the Orders below.
ORDER

Within 120 calendar days of this decision becoming final, the Agency shall take the following
actions:

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1. Counsel G regarding his work attire and appearance, emphasizing that it is unacceptable
for his genitalia to be discernible and/or visible in the workplace. The Agency shall
ensure that G complies with this directive.
2. 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 her request for compensatory
damages within forty-five (45) calendar days of the date Complainant receives the
Agency's notice. No later than sixty (60) calendar days after the date Complainant
submits her evidence, 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.
3. Provide eight (8) hours of training to all management officials at its Greensboro, North
Carolina P&DC, regarding their responsibilities with respect to Title VII, with special
emphasis on harassment.
4. Provide four (4) hours of training to all craft employees at its Greensboro, North
Carolina P&DC, regarding their rights under Title VII, with special emphasis on their
right to work in an environment free from unlawful harassment.
5. Consider taking appropriate disciplinary action against the responsible management
officials. The Commission does not consider training to be disciplinary action. The
Agency shall report its decision to the compliance officer. If the Agency decides to take
disciplinary action, it shall identify the action taken. If the Agency decides not to take
disciplinary action, it shall set forth the reason(s) for its decision not to impose
discipline. If any of the responsible management officials have left the agency's
employ, the Agency shall furnish documentation of their departure date(s).

POSTING ORDER (G0610)

The Agency is ordered to post at its Processing & Distribution Center in Greensboro, North
Carolina 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.

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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.

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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
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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

August 20, 2013
Date