01970893
08-10-2000
Dixie Lee Anders, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Dixie Lee Anders v. United States Postal Service
01970893
08-10-00
.
Dixie Lee Anders,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01970893
Agency No. 2-G-1306-1
DECISION
INTRODUCTION
On November 6, 1996, Dixie Lee Anders (hereinafter referred to as
complainant) filed a timely appeal from the October 7, 1996, final
decision of the United States Postal Service (hereinafter referred to as
the agency) concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. Accordingly, the appeal is timely filed
(see 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.402(a))), and is accepted in accordance
with EEOC Order No. 960, as amended.<1> For the reasons that follow,
the agency's decision is reversed.
ISSUE PRESENTED
The issue presented in this appeal is whether the complainant has proven,
by a preponderance of the evidence, that the agency discriminated against
her on the basis of sex (sexual harassment) on July 2, 1991 (July 2).
BACKGROUND
Complainant filed her formal complaint on September 20, 1991.<2>
Following an investigation, complainant requested a hearing before an
EEOC Administrative Judge (AJ). A hearing was held in December 1992,
and, on August 6, 1996, the AJ issued a Recommended Decision (RD),
finding that the agency discriminated against complainant. In its final
agency decision (FAD), the agency rejected the RD and found that it did
not discriminate against complainant.
Complainant began working as a casual employee in July 1988, and, at
the time of the events herein, was a Rural Carrier Associate (RCA) in
Carmel (North Carolina), working auxiliary routes and as a substitute.
In the summer of 1989, a new manager came to the Carmel station (S1).
Shortly thereafter, complainant and S1 commenced a consensual sexual
relationship. The relationship ended around February 1, 1991, although
complainant and S1 had social contact of a non-sexual nature on at least
one occasion thereafter. Complainant sought transfer to another facility
on July 1 and left the Carmel station in mid-July 1991.<3>
In late June 1991, complainant sought a review of the delivery sequence
for Route 72, for which she was the substitute carrier.<4> On July 2,
1991, complainant and S1 traveled in S1's car to review the established
delivery sequence of the mail route. Near the end of the trip, S1
drove into an uninhabited cul-de-sac and parked the car. He began to
kiss and touch complainant and, according to complainant, engaged in
a sexual act on himself. At that point, complainant's boyfriend (E1),
also a RCA, arrived, and complainant completed the route review with E1.
In his investigative affidavit, S1 acknowledged that he kissed and touched
complainant, but denied that he engaged in a sexual act. In her initial
statement, complainant stated that she allowed S1 to kiss and touch her
because she "still liked him" but when "he got all worked up [she] was
not going to help him." (Statement, August 27, 1991). At the hearing,
complainant further described S1's actions as "pawing all over me" and
stated that she asked him to stop and pushed him away. (Tr. pp. 30-31).
E1 stated that, standing approximately 30 feet away on a hillside, he
saw S1 engaging in motions with his right hand indicative of the sexual
act in question.
Following complainant's administrative complaint, the agency initiated
an investigation that resulted in a settlement agreement between S1
and the agency, whereby S1 was charged with improper personal conduct
on duty and issued a 14-day suspension on September 24, 1991.<5> The
agency's report found that S1 engaged in a consensual intimate sexual
relationship with a subordinate employee and was reprimanded for his
habit of touching subordinate employees. The incident of July 2, 1991,
was not mentioned in the agency's report.
The AJ found that, on July 2, 1991, S1 engaged in the sexual act as
alleged by complainant, that it was unwelcome to complainant, and that
it, in conjunction with S1's other behavior toward female employees,
constituted hostile environment sexual harassment. He further found that
complainant's testimony was credible and that she had a legitimate and
justifiable fear concerning her job status, as seen by her voluntarily
transferring to another site, although the record shows that she did
not suffer any diminution in pay or benefits. The AJ stated that his
finding of sexual harassment was founded on his view of the record as
a whole and that S1's conduct was part of a pattern wherein he touched
and fondled complainant and other subordinate female employees.
The AJ rejected the agency's theory of a conspiracy between complainant
and E1 against S1 and its argument that S1's conduct, to the extent
it occurred, was not unwelcome by complainant. He also found that the
agency failed to take swift or sufficient action to correct the unlawful
sexual harassment. As relief, the AJ directed that the agency acknowledge
to complainant that she was the victim of sexual harassment, that any
adverse documents as a result of this matter be removed from her file,
that the agency post a notice, and that complainant be awarded reasonable
attorney's fees. The AJ noted that complainant did not show entitlement
to back pay and, as the events herein occurred prior to November 21,
1991, was not entitled to compensatory damages.
In its FAD, the agency found that the AJ's reasoning was flawed and
rejected his recommended decision. The agency criticized the evidence
relied on by the AJ, finding it incomplete or unreliable. The agency
contended that complainant had not clearly withdrawn from her relationship
with S1, that S1 did not engage in a sexual act on July 2, 1991, and
that, if such conduct occurred, it was not unwelcome by complainant.
With regard to its actions after complainant's administrative complaint,
the agency asserted that it took prompt and appropriate action and that
it was not liable for S1's actions under principles of agency law since
it has a strong policy against sexual harassment.
On appeal, complainant contended that the agency was negligent in its
handling of her administrative complaint and asserts her disagreement
with the restriction on compensatory damages to her case. The agency
submitted comments in support of its FAD.
ANALYSIS AND FINDINGS
After a careful review of the record, the Commission finds that the
decision of the AJ accurately states the facts and correctly applies the
pertinent principles of law. Based on our review of the record, we find
that the credibility findings and the decision of the AJ were correct.
Following two recent Supreme Court decisions, the Commission issued
guidance concerning an agency's liability for harassment by supervisors.
See Enforcement Guidance: Vicarious Employer Liability for Unlawful
Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999)
(Guidance).<6> Flowing from the Court's decisions, the Commission's
guidance, as applied to federal agencies, is premised on the principles
that an agency is liable for the acts of its supervisors and that
agencies should be encouraged to prevent harassment in the workplace and
employees encouraged to avoid or limit the harm caused by the harassment.
Guidance, at1. Based on these two axioms, the guidance holds that,
where harassment is found and culminates in a tangible employment action,
the agency is strictly liable, and no defense is available.<7> Ibid.
Conversely, where the proven harassment does not result in a formal
personnel action, an agency may avoid or limit damages by utilizing an
affirmative defense that demonstrates that: (a) the agency exercised
reasonable care to prevent and correct unlawful harassment<8> and (b)
the employee unreasonably failed to take advantage of the agency's
preventive or corrective processes or to otherwise avoid harm. Ibid.
A determination that unlawful harassment has occurred must be predicated
on events that are sufficiently severe and pervasive such that the
conditions of the workplace are altered, that is, the harassment has
culminated in a tangible employment action or created a hostile work
environment. Guidance, at 2, citing, Oncale v. Sundowner Offshore
Services, Inc., 523 U.S. 75, (1998). In analyzing allegations of
harassment, the Commission will continue to examine factors such as the
frequency of the alleged discriminatory conduct, its severity, whether
it is physically threatening or humiliating and if it unreasonably
interferes with an employee's work performance. Harris v. Forklift
Systems, Inc., 510 U.S. 17 (1993). Usually, unless the conduct is severe,
a single incident or group of isolated incidents will not be regarded
as discriminatory harassment. Walker v. Ford Motor Co., 684 F.2d 1355,
1358 (11th Cir. 1982); see Guidance, at 2.
It is well-settled that sexual harassment in the workplace constitutes an
actionable form of sex discrimination under Title VII. Meritor Savings
Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim
of harassment, the complainant must show that: (1) she belongs to the
statutorily protected class; (2) she was subjected to unwelcome conduct
related to her membership in the class; (3) the harassment complained
of was based on 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. See Henson v. City
of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct
should be evaluated from the objective viewpoint of a reasonable
person in the victim's circumstances. Enforcement Guidance on Harris
v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).
If the complainant satisfies the five elements, then the agency is
subject to vicarious liability insofar as the harassment would have
been �created by a supervisor with immediate...authority over the
[complainant].� Guidance, at 4
Initially, in considering complainant's claim, we find, as did the
AJ, that the weight of evidence shows that the incident did occur,
that is, on July 2, 1991, S1 engaged in a sexual act on himself in
front of complainant and that the action taken by S1 was unwelcome
to her. Further, we find that the conduct was sufficiently severe to
constitute discriminatory harassment. As is set forth in the EEOC's
Policy Guidance on Current Issues of Sexual Harassment, "a single,
unusually severe incident of harassment may be sufficient to constitute
a Title VII violation." N-915-050, No. 137 (March 19, 1990),at104.
See Walker v. Ford Motor Company, supra ; Johnson v. Bunny Bread Co.,
646 F.2d 1250, 1257 (5th Cir. 1981).
Finally, we find that the agency is liable for S1's actions and that
the agency, through S1, failed to take appropriate action that provided
an adequate resolution of the matter. See Guidance, supra. In order to
avoid liability for complainant's charges of sexual harassment, an agency
must demonstrate that complainant failed take advantage of any preventive
or corrective opportunities and that the employer exercised reasonable
care to prevent and correct such behavior. Guidance, at 1. Here,
complainant filed an administrative complaint, and, although the agency
conducted a review, its resolution rendered no relief to complainant and
limited discipline to S1. Most tellingly, the agency's report failed
to mention complainant's allegations concerning S1's actions of July 2.
The agency argued that the incident did not occur and that, if it
occurred, it was not unwelcome to complainant. In making this argument,
the agency disregarded the AJ's determination that complainant's testimony
regarding the incident was credible. In considering the agency's
position, we note that, in an administrative hearing, where the motivation
and credibility of witnesses are critical, the credibility findings of
an AJ are entitled to great weight unless there is substantial evidence
in the record to support a contrary assessment. See Universal Camera
Corp. v. National Labor Relations Board, 340 U.S. 474, 496 (1951); Esquer
v. United States Postal Service, EEOC Request No. 05960096 (September 6,
1996); Willis v. Department of the Treasury, EEOC Request No. 05900589
(July 26, 1990). In addition, we note that no witness substantially
undermined complainant's claim regarding her relationship with S1 or her
and E1's descriptions of the events of July 2. Based on our review of
the record, we find that the credibility findings and the decision of
the AJ were correct.
In relief, we find that, in addition to the relief set out by the AJ,
it is appropriate to require the agency to provide training to all
management personnel involved in this matter with regard the agency's
obligations regarding sexual harassment. Complainant also made a claim
for compensatory damages. Although the Civil Rights Act of 1991 (CRA),
42 U.S.C. � 1981a, authorizes an award of compensatory damages for
intentional discrimination in violation of Title VII, the Supreme Court
has held that the compensatory damages provision of the CRA is not to
be retroactively applied to conduct that occurred prior to the Act, or
November 21, 1991. Landgraf v. USI Film Products, 511 U.S. 244 (1994).
Thus, the holding in Landgraf precludes an award of compensatory damages
for the acts of discrimination herein because they occurred prior to
November 21, 1991, and complainant is not entitled to compensatory
damages. Laverdure v. Interior, EEOC Request No. 05931186 (June 17,
1994).
CONCLUSION
Accordingly, the agency's decision is REVERSED. The agency is directed
to comply with the Order, below.
ORDER
The agency is ORDERED to take the following remedial action:
A. The agency shall take whatever actions it deems necessary, including
but not limited to the actions set forth below, to ensure that complainant
or any other employee is not subjected to sexual harassment in the
future. The agency shall notify complainant and the Commission by
letter of its specific plans to insure a work environment free of sexual
harassment.
B. The agency shall conduct training for all supervisory and management
personnel who were in S1's chain of command in the North Carolina region
and those personnel involved in review of complainant's administrative
complaint, specifically addressing these employees' responsibilities
under equal employment opportunity law. The training shall place special
emphasis on the prevention and elimination of sexual harassment.
C. 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 verifying
that the corrective action has been implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post, at its Carmel, North Carolina, facility,
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 (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to the
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
__08-10-00________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
AN AGENCY OF THE UNITED STATES GOVERNMENT
This Notice is posted pursuant to an Order by the United
States Equal Employment Opportunity Commission dated
which found that a violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. � 2000e et seq. 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 privilege of employment.
The Carmel, North Carolina, facility supports and will comply with
such federal law and will not take action against individuals because
they have exercised their rights under the law. It has remedied the
employee affected by the Commission's finding by, inter alia, providing
training for supervisory personnel and posting this notice. The Carmel,
North Carolina, 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 laws and will not
subject employees to discrimination based on sex (sexual harassment).
The Carmel, North Carolina, 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 participated
in proceedings pursuant to, Federal equal employment opportunity law.
Date Posted:
Posting Expires:
29 C.F.R. Part 1614.
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Initially the agency dismissed complainant's complaint for untimely EEO
contact, but the complaint was remanded by the Commission. EEOC Appeal
No. 01920438 (March 4, 1992).
3Complainant continued to work at Carmel on Saturdays but had no official
contact with S1, who did not work on that day.
4A review requires a manager and the carrier to drive the route, measuring
the distance between every turn and counting the mailboxes.
5The record indicates that S1 retired in early 1992. He did not testify
at the hearing.
6Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher
v. City of Boca Raton, 524 U.S. 775 (1998). Although these decisions
addressed sexual harassment, the Court's legal analysis reached into
cases involving harassment on other bases, and therefore the Commission's
guidance sets forth a standard of liability applicable to all forms of
unlawful harassment. Guidance, at1.
7Tangible employment actions are, e.g., discharge, demotion, or
reassignment. Guidance, at 7.
8An agency may show that it exercised reasonable care through creation
of, inter alia, a complaint procedure that provides for the dissemination
and enforcement of policies prohibiting unlawful harassment. Guidance,
at15.