0120093837
08-31-2011
Hester D. Smith-Riggins, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.
Hester D. Smith-Riggins,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Appeal No. 0120093837
Hearing No. 430-208-00309X-PD
Agency No. 4K-290-0006-08
DECISION
On September 22, 2009, Complainant filed an appeal from the Agency’s
August 20, 2009, final decision 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., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
The Commission accepts the appeal, according to 29 C.F.R. § 1614.405(a).
For the following reasons, the Commission AFFIRMS in part, and REVERSES
in part the Agency’s final decision.
ISSUES PRESENTED
1. Whether an EEOC Administrative (AJ) abused his discretion in dismissing
Complainant’s hearing request when Complainant did not attend the
start of the hearing at 8:30 a.m.
2. Whether the Agency erred in finding that Complainant was not subjected
to hostile work environment harassment on the bases of race, disability,
and reprisal for prior EEO activity.
3. Whether the Agency erred in finding that Complainant was not subjected
to hostile work environment harassment on the basis of sex when her
supervisor acknowledged that she had called Complainant to a room with
three other female employees present, directed Complainant to turn around,
pointed to Complainant’s buttocks, stated that Complainant was wearing
lace underwear, and pushed Complainant.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Sales Clerk at the Agency’s Eutawville Post Office in Eutawville,
SC. It is undisputed that on September 29, 2007, the Postmaster of the
facility called Complainant to a room with three other female employees
present, directed Complainant to turn around, pointed to Complainant’s
buttocks, and stated: “Look ya’ll, [Complainant] is wearing lace
underwear.” The Postmaster then pushed Complainant.
Two weeks later, Complainant contacted an EEO counselor, alleging
harassment. The counselor relayed the allegation to another Agency
manager, who interviewed witnesses and found that the Postmaster had
made inappropriate comments to Complainant. On December 14, 2007, the
Agency issued to the Postmaster a letter of warning in lieu of a seven-day
suspension for improper conduct on September 29, 2007. But the Agency
found that such conduct did not amount to discriminatory harassment.
Formal EEO Complaint and Investigation
In January 2008, Complainant filed a formal EEO complaint, alleging that
the Agency subjected her to hostile work environment harassment on the
bases of race (African-American), sex (female), disability (bad back),
and reprisal for prior protected EEO activity.
• For race-based harassment, Complainant alleged that the Postmaster
(white female) used the word “nigger” in her presence while speaking
with a white male employee during a training session in January 2007.
• For sex-based harassment, Complainant alleged that in September 2007,
the Postmaster called her to stand in front of three white female workers,
and pointed out to them that Complainant was wearing lace underwear.
Complainant then alleged that the Postmaster shoved her in the lower back,
causing excruciating pain.
• For disability-based harassment, Complainant alleged that the
Postmaster deliberately shoved her in the back in September 2007,
knowing that she had a bad back and had recently been in a car accident.
• For retaliation, Complainant alleged that, since contacting an EEO
counselor on October 16, 2007, the Postmaster has harassed her, reduced
her work hours, and held her back from reassignment to another facility.
For relief, Complainant requested monetary damages for her pain and
suffering and reassignment to another facility. The Agency conducted
an investigation. In her February 2008 affidavit, Complainant described
other incidents not previously mentioned in her formal complaint.
• In March 2007, the Postmaster pointed to a magazine cover that
showed a woman wearing a tiger print bikini and stated to Complainant:
“This looks like something that you could wear.”
• On unspecified dates, the Postmaster openly criticized Complainant’s
work in front of employees and customers by:
o snatching mail from her hand in front of a customer,
o calling her from a different postal location to tell her that she had
not done a thorough job,
o counseling her about her work performance and the possibility of
receiving a letter of warning.
• The Postmaster whistled loudly in Complainant’s presence in
January 2008.
• The Postmaster asked Complainant to acknowledge in writing that on
two days, she had been two minutes late to work in January 2008.
• The Postmaster changed her work schedule in February 2008.
The EEO investigator investigated these additional allegations as part of
Complainant’s harassment claim. 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 requested a hearing.
Dismissal of Complainant’s Hearing Request and Final Agency Decision
The AJ scheduled the hearing for April 15, 2009, but on that day,
Complainant did not appear for the hearing. As a result, the AJ dismissed
the hearing request and remanded the complaint to the Agency.
The Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).
The decision concluded that Complainant failed to prove that the Agency
subjected her to discrimination as alleged. The Agency first found
that Complainant could not establish prima facie cases of discrimination
on the bases of disability and reprisal. As for the harassment claims
based on race and sex, the Agency initially found that the majority of
Complainant’s allegations in her affidavit did not rise to the level of
hostile work environment harassment because they consisted of routine work
assignments, instructions, and admonishments. As for the allegation that
the Postmaster used the term “nigger,” the Agency determined that,
if true, this one incident of an offensive racial utterance would not
have been severe enough, by itself, to constitute harassment.
For sex-based harassment, the Agency found that the bikini comment in
March 2007 and the lace underwear comment in September 2007 were not
severe or pervasive enough to constitute discriminatory harassment.
CONTENTIONS ON APPEAL
On appeal, Complainant only challenges the AJ’s dismissal of her request
for a hearing. She offers no support for the merits of her claims of
discrimination. Complainant contends that the AJ erred in dismissing her
request for a hearing because the Agency’s attorney told her the wrong
start time for the hearing. According to Complainant, the AJ delegated
the task of finding a hearing location and start time to the Agency’s
attorney after a pre-hearing conference. The Agency’s attorney then
telephoned Complainant and told her that the hearing would start at 10:30
a.m on April 15, 2009. In reality, the actual start time was 8:30 a.m.
Because the Agency’s attorney provided Complainant with the wrong start
time, Complainant maintains that the AJ should have excused Complainant
for missing the hearing, and rescheduled the hearing for another time.
The Agency responds that Complainant was adequately notified of the
correct start time for the hearing. For support, the Agency attaches
several documents to its appellate brief. First is the AJ’s “Revised
Scheduling Notice and Order,” which provides a hearing time of 8:30
a.m. Second is a declaration by the Agency’s attorney, who denied
telling Complainant that the hearing would start at 10:30 a.m. Third is
Complainant’s work schedule for April 2009, which shows 8:30 a.m. as
her work start-time for the day of the hearing, while 9:30 a.m. was her
start time two days before, and two days after the day of the hearing.
Because Complainant’s work schedule and AJ’s revised scheduling order
show that Complainant was adequately informed of the correct start time
for the hearing, the Agency maintains that Complainant had no compelling
reason to miss the hearing. Therefore, the Agency argues that the AJ
properly dismissed the hearing request.
On the merits, the Agency argues that the FAD properly found no
discrimination. For the harassment claims based on race and sex,
the Agency further contends that, even if the actions in question were
harassing, the Agency is not vicariously liable for the Postmaster’s
conduct because it can successfully raise an affirmative defense.
The Agency argues that Complainant’s failure to immediately report on
the Postmaster’s alleged offensive remarks in January and March 2007
means that she unreasonably failed to take advantage of any preventive
or corrective opportunities. After Complainant notified the Agency of
the harassing allegations in October 2007, the Agency maintains that
it promptly conducted an investigation and ultimately issued a letter
of warning to the Postmaster for improper conduct. Because Complainant
failed to immediately report her allegations of harassment, and the Agency
promptly took corrective action once Complainant notified the Agency,
the Agency argues that it should not be found to be vicariously liable
for the Postmaster’s harassing conduct.
ANALYSIS AND FINDINGS
Procedural Issue: AJ’s Dismissal of Hearing Request
Procedurally, the Commission finds that the AJ did not abuse his
discretion in dismissing Complainant’s request for a hearing when she
did not appear at the hearing. We find that the AJ’s scheduling notice
and order and Complainant’s work schedule for the day of the hearing
provided Complainant with adequate notice of the correct start time.
It was within the AJ’s discretion to not excuse Complainant’s absence
from the hearing, and ultimately remand the complaint to the Agency for
a final decision on the merits.
We now turn to the merits of Complainant’s complaint.1
Hostile Work Environment Harassment
The Commission reviews de novo an agency’s final decision that is
issued without a hearing under 29 C.F.R. § 1614.110(b). 29 C.F.R. §
1614.405(a).
“The de novo standard requires that the Commission examine the
record without regard to the factual and legal determinations of the
previous decision maker. . . . The Commission will review the documents,
statements, and testimony of record, including any timely and relevant
submissions of the parties, and . . . will issue its decision based on
the Commission’s own assessment of the record and its interpretation
of the law.” Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO MD-110), at 9-15 (Nov. 9, 1999).
To establish hostile work environment harassment by a supervisor,
Complainant must show five things. First, Complainant must be a member
of a statutorily protected class. Second, the supervisor engaged in
unwelcome verbal or physical conduct. Third, the unwelcome conduct
was based on Complainant’s statutorily protected class. Fourth, the
unwelcome conduct either (a) affected a term or condition of employment,
or (b) had the purpose or effect of unreasonably interfering with the
work environment or creating an intimidating, hostile, or offensive
work environment. Fifth, there is a basis for imputing liability to
the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238
(Oct. 16, 1998); 29 C.F.R. § 1604.11.
a. Harassment Based on Race
We find that Complainant failed to establish the second element of a
hostile work environment harassment claim on the basis of race. In her
affidavit, Complainant raised two incidents of race-based harassment.
One involved Complainant allegedly overhearing the Postmaster shout
“You nigger” to a white male employee in January 2007 during a
training session. The other involved the same white male employee
exhibiting (in Complainant’s words) a “poor sense of racial humor.”
Complainant affidavit, at 3. Complainant did not elaborate on what the
male employee said, other than to tell her to run his route for the day
or case his mail, but she averred that she ignored the male employee’s
use of racial humor, hoping he would leave her alone. “Eventually,
he stopped after he saw that I was determined not to allow him to get
a rise out of me concerning the true nature of his comments.” Id.
In her affidavit, the Postmaster denied using the racial epithet
in Complainant’s presence in January 2007. As for the white male
employee’s display of racial humor, the Postmaster recalled that he
had jokingly commented about Complainant running his route and casing
his mail, and that he told the Postmaster that Complainant was “getting
uppity” with him. The Postmaster did not say anything because he was
joking with Complainant.
Upon review of the record, we find that there is insufficient
evidence to establish that the Postmaster uttered the racial epithet in
Complainant’s presence in January 2007 and that a white male employee
employed offensive race-based humor. There is no corroborating testimony
from other individuals, such as fellow trainees, trainers, or other
present staff members, who heard the Postmaster shout the racial epithet.
And we cannot find that the white male employee engaged in unwelcome
conduct if Complainant neglects to specify what the race-based comments
were in her affidavit. Asking someone to run a route or case mail,
on its own, is not an obvious display of racial humor. Because we
determine that Complainant did not present enough evidence to show that
the Postmaster and male employee engaged in unwelcome verbal conduct,
we find that Complainant failed to establish hostile work environment
harassment on the basis of race.2
b. Harassment Based on Reprisal
To establish a prima facie case of reprisal, Complainant must show that:
(1) she engaged in prior protected activity; (2) the Agency was aware of
the protected activity; (3) she was subsequently subjected to adverse
treatment by the Agency; and (4) a nexus exists between the protected
activity and the adverse treatment. McMillen v. U.S. Postal Serv.,
EEOC Appeal No. 0120072556 (Feb. 26, 2009); Whitmire v. Dep’t of the
Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
Once Complainant has established a prima facie case, the Agency has the
burden of “producing evidence” that an adverse employment action was
taken “for a legitimate, non-discriminatory reason.” St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 506-507 (1993) (quoting Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981)). “'[T]he
defendant must clearly set forth, through the introduction of admissible
evidence,' reasons for its actions which, if believed by the trier
of fact, would support a finding that unlawful discrimination was not
the cause of the employment action.” Hicks, 509 U.S. at 507 (quoting
Burdine, 450 U.S. at 254-255).
In her affidavit, Complainant appears to allege that the Postmaster
engaged in unwelcome conduct in reprisal for Complainant contacting an EEO
counselor on October 16, 2007. Specifically, Complainant describes in her
affidavit the following incidents that occurred after October 16, 2007:3
• Before she became involved in the EEO complaint process, the
Postmaster encouraged Complainant not to over-exert herself when she
carried two or three letter trays, but after she contacted an EEO
counselor, the Postmaster insisted that she carry three trays at the
same time.
• On January 18, 2008, the Postmaster asked Complainant whether she
had spoken to a Human Resources person about Complainant’s request
for reassignment. To Complainant, this showed that the Postmaster was
attempting to block her request for reassignment to another facility.
• On January 25, 2008, the Postmaster was whistling loudly,
and Complainant informed her that the whistling was distracting.
The Postmaster responded that whistling was a habit of hers and continued
to whistle.
• On January 30, 2008, the Postmaster brought two copies of
Complainant’s timecards. The Postmaster told her she had been two
minutes late on January 25 and 28 and asked her to sign the two cards
to acknowledge her tardiness. Complainant refused.
• When the local facility experienced down time, and Complainant wanted
to work at another postal facility to earn more money, the Postmaster
did not allow Complainant to work at the other facility. The Postmaster
would tell the other facility that Complainant was needed here.
o On February 15, 2008, the Postmaster changed Complainant’s work
schedule to ensure that Complainant could not work at the other facility.
o The Postmaster reduced her work hours.
Assuming, for the sake of argument, that Complainant established a prima
facie case of reprisal, we find that the Agency articulated legitimate,
non-retaliatory reasons for its actions. Specifically, the Postmaster
averred:
• She had never previously warned Complainant about physically
over-exerting herself in carrying three letter-trays because Complainant
had no lifting restrictions and never complained of back pain. Instead,
she had instructed Complainant to place the trays in spaces for the
carriers to retrieve, rather than carry the trays directly to the
carriers.
• The Postmaster filled out an evaluation of Complainant’s work
performance as part of Complainant’s reassignment request. After the
union steward asked her what was going on with the reassignment,
the Postmaster contacted the district office that was in charge of
approving requests. The district office told her that Complainant had
not responded to a letter, which had denied the request since Complainant
had worked less than 18 months at the Agency.
• The Postmaster whistled because it relieved stress and was a habit
of hers. After Complainant expressed her annoyance, the Postmaster
tried to refrain from whistling.
• The Postmaster asked Complainant to sign a “notification of absence
form” because Complainant had arrived late to work. In addition,
the Postmaster had been having problems with another employee who was
late and tried to treat all late employees equally.
• The Postmaster denied that she limited Complainant’s opportunity
to work at the other facility. She maintained that Complainant
occasionally worked at the other facility when that facility was
short-staffed and there was someone at the local facility who could
fill in for Complainant. Moreover, the Postmaster had been the one who
initially encouraged Complainant to work at the other facility to gain
more training experience.
o On February 15, 2008, the Postmaster changed Complainant’s schedule
to start at 6:30 a.m. because the employee who was supposed to start at
6:30 a.m. called in sick.
o The Postmaster emphasized that Complainant worked as a part-time
employee on a flexible schedule, and the Agency does not guarantee her
a certain number of hours of work.
When an agency articulates legitimate, non-retaliatory reasons for its
actions, the complainant has the burden of showing, by a preponderance
of the evidence, that the explanations are pretexts designed to hide
the true retaliatory motive. See EEOC Compliance Manual Section 8:
“Retaliation,” No. 915.003, at 8-19 (May 20, 1998). We find that
Complainant failed to show pretext. There is nothing in the record to
indicate that the Postmaster deviated from an applicable personnel policy
or past practice in the way she handled Complainant’s reassignment
request and scheduled Complainant’s work time on February 15, 2008.
The record does not show that the Postmaster treated Complainant
differently from similarly situated employees when she instructed
Complainant the proper way to carry letter trays and asked her to fill
out a notification of absence form for being late. Nor has Complainant
provided any reason to question the Postmaster’s credibility on the
other work-related decisions. Therefore, we find that Complainant
did not establish the third element of a hostile work environment
harassment claim, that the unwelcome conduct was based on reprisal for
Complainant’s prior EEO activities.
c. Harassment Based on Sex
i. Unwelcome Conduct Based on Sex
Upon review, the Commission finds that Complainant satisfied the first
element of a hostile work environment harassment claim because she is
a female. For the second element, we find that the Postmaster engaged in
unwelcome verbal and physical conduct based on Complainant’s sex when:
• in March 2007, the Postmaster pointed to a magazine with a woman
wearing a tiger-print bikini and told Complainant, “This looks like
something that you could wear”; and
• on September 29, 2007, the Postmaster called Complainant to a room
with three other white female employees present, directed her to turn
around, pointed to her buttocks, stated, “Look ya’ll, [Complainant]
is wearing lace underwear,” then pushed her, causing her to cry out
in pain.
We find credible the findings of the Agency manager, who initially
investigated Complainant’s harassment allegations. In a November 30,
2007 memorandum, the manager determined that the Postmaster had “made
an inappropriate statement to [Complainant] concerning a bikini in a
magazine stating, ‘[Complainant] look, this looks like something you
can wear.’” In addition, the manager found that the Postmaster had
made “an embarrassing statement concerning [Complainant] in front of
other employees concerning her underwear.”
Furthermore, the Postmaster acknowledged in her affidavit that
on September 29, 2007, she had called Complainant to a work area,
“acquired” the attention of three female employees, directed
their attention to Complainant’s buttocks, and stated “Look
y’all—[Complainant] is wearing lace underwear.”
What happened next is in dispute.
• Complainant averred that she told the Postmaster, “I cannot believe
that you just did that.” She tried to walk away, but the Postmaster
shoved her in the lower back, and Complainant cried out in pain.
The Postmaster then apologized.
o A black female employee, who was working at the window and could not
see what was going on, nevertheless stated that she heard the Postmaster
comment about Complainant’s lace underwear and then heard Complainant
yell out.4
• In contrast, the Postmaster averred that she “gently pushed”
Complainant on the right shoulder, at which point Complainant reached for
her back. The Postmaster apologized. Complainant then gently hit the
Postmaster with the mail in her hand and said, “Aren’t you funny.”
o One of the three employees (white female) who witnessed the event
averred that the Postmaster touched Complainant on the shoulder, at
which point Complainant flinched. The witness suggested that Complainant
may have been hurt by the touch because she had been in a car accident
earlier.
o Another of the three employees (white female) averred that she had
her back turned and did not see what was going on.
o The last of the three employees (white female) declined to answer the
EEO investigator’s questions, preferring “not to have any involvement
in this investigation.”
All of the witnesses (who testified) agreed that the Postmaster engaged
in physical conduct that, whether a shove in the back or a push in
the shoulder, caused Complainant to be in noticeable physical pain, so
much so that the Postmaster immediately apologized. Further, we find
credible the testimony of Complainant and the window employee (the only
two black female witnesses) that Complainant cried out in pain. Overall,
we find that, after making the underwear comment, the Postmaster pushed
Complainant and caused her to cry out in pain.
The Agency appears to argue that the September 29, 2007 conduct was not
unwelcomed because the Postmaster and one of the other employees testified
that they were joking around and Complainant had reacted humorously
afterwards. We find this version of events to be highly implausible.
It is unlikely that Complainant reacted with good humor and cheer to her
supervisor publicly humiliating her in front of three other employees,
pushing her, and causing her such physical pain that the Postmaster
noticed and immediately apologized.
As such, we find that the Postmaster’s verbal and physical conduct
concerning bikinis and underwear were based on Complainant’s sex,
thereby satisfying the third element of a hostile work environment claim.5
ii. Severity of Unwelcome Conduct Based on Sex
We next examine whether the unwelcome conduct was “sufficiently severe
or pervasive to alter the conditions of [complainant's] employment and
create an abusive working environment.” Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore
Services, Inc., 23 U.S. 75 (1998). In determining whether the unwelcome
conduct was sufficiently severe or pervasive, the Commission evaluates
the harasser’s conduct 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, at 6 (Mar. 8, 1994).
While a single incident or isolated incidents of offensive conduct
or remarks generally do not create an abusive environment, a single
incident may be sufficient to create an abusive environment if it
is unusually severe. Here, we find that Postmaster’s remarks on
bikinis and lace underwear, coupled with physically pushing Complainant,
constituted unusually severe conduct. In particular, we emphasize the
public nature of Complainant’s humiliation in front of three other
employees, who were directed by the Postmaster to look at Complainant’s
buttocks and intimate apparel. We also emphasize that the conduct was
not limited to verbal remarks. Rather, the verbal conduct culminated
in physical conduct, which resulted in physical pain to Complainant.
Given the public nature of the humiliation and the physical conduct and
pain suffered by Complainant, we find such behavior to be sufficiently
severe to create an abusive environment. Therefore, Complainant satisfied
the fourth element in establishing a hostile work environment claim.
iii. Affirmative Defense to Liability or Damages
“When harassment by a supervisor creates an unlawful hostile
environment, but does not result in a tangible employment action,6 the
employer can raise an affirmative defense to liability or damages, which
it must prove by a preponderance of the evidence.” EEOC Enforcement
Guidance: Vicarious Employer Liability for Unlawful Harassment by
Supervisors, EEOC No. 915.002, at 12 (June 18, 1999).
To successfully raise this affirmative defense, the Agency must show that
(1) the employer exercised reasonable care to prevent and correct promptly
any harassment; and (2) the employee unreasonably failed to take advantage
of any preventative or corrective opportunities provided by the employer
or to avoid harm otherwise. Burlington Industries, Inc. v. Ellerth, 524
U.S. 742, 765 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 778
(1998). “If both parties exercise reasonable care, the defense will
fail.” EEOC Enforcement Guidance: Vicarious Employer Liability for
Unlawful Harassment by Supervisors, EEOC No. 915.002, at 14 (June 18,
1999). “While this result may seem harsh to a law abiding employer,
it is consistent with liability standards under the anti-discrimination
statutes which generally make employers responsible for the discriminatory
acts of their supervisors.” Id.
For the second element of the affirmative defense, the Agency argues
that Complainant failed to timely inform the Agency of previous harassing
incidents, such as the January 2007 utterance of a racial epitaph or the
March 2007 bikini comment. Because Complainant did not immediately inform
the Agency about these, and other work-related incidents, Complainant
unreasonably failed to take advantage of the opportunities to prevent or
correct the Postmaster’s behavior and avoid the harm from the September
29, 2007 incident.
We disagree. Our Enforcement Guidance cautions:
A determination as to whether an employee unreasonably failed to complain
or otherwise avoid harm depends on the particular circumstances and
information available to the employee at that time. An employee should
not necessarily be expected to complain to management immediately
after the first or second incident of relatively minor harassment.
Workplaces need not become battlegrounds where every minor, unwelcome
remark based on race, sex, or another protected category triggers a
complaint and investigation. An employee might reasonably ignore a small
number of incidents, hoping that the harassment will stop without resort
to the complaint process. The employee may directly say to the harasser
that s/he wants the misconduct to stop, and then wait to see if that is
effective in ending the harassment before complaining to management.
EEOC Enforcement Guidance: Vicarious Liability for Unlawful Harassment
by Supervisors, EEOC No.915.002, at 29-30 (June 19, 1999) (citations
omitted).
Complainant averred that she initially ignored the white male employee’s
attempts at humor, and he eventually stopped his jokes. We find it
reasonable that Complainant ignored the male employee’s unwelcome
remarks in January 2007, hoping that he would stop without resorting to
the complaint process. We also find it reasonable that Complainant did
not immediately report the first incident of sex-based harassment, the
March 2007 bikini comment, because of the totality of the circumstances
surrounding the comment.
We point out that Complainant was not totally passive with respect to
the other work-related incidents. On several occasions, she directly
asked the Postmaster to stop certain types of misconduct, and those
conversations appeared to have successfully changed the Postmaster’s
conduct. For example, the Postmaster acknowledged in her affidavit that
Complainant talked to her about feeling incompetent after the Postmaster
snatched mail out of Complainant’s hands in front of a customer.
The Postmaster averred that she changed her subsequent behavior by quietly
calling Complainant over to correct her. The Postmaster also recalled
that Complainant had told her she found the Postmaster’s whistling to
be distracting and annoying, and so the Postmaster tried to refrain from
further whistling.
Overall, we find that Complainant took reasonable steps to avoid harm
when she ignored several early incidents and on other occasions directly
told her harasser to stop certain types of misconduct. Since these
strategies successfully halted or reduced some of the unwelcome conduct,
it was reasonable for Complainant to not report these incidents to the
Agency at large during this time. It was reasonable for Complainant to
finally report to the Agency about misconduct two weeks after suffering
a public humiliation and a physical touching on September 29, 2007.
Therefore, the Commission finds that the Agency failed to establish, by
a preponderance of the evidence, the second element of the affirmative
defense. We conclude that the Agency is vicariously liable for the
Postmaster’s supervisory harassment based on sex.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the portion
of the Agency’s final decision that found no discrimination on the bases
of race, disability, and reprisal for prior EEO activity. We REVERSE
the Agency’s final decision with respect to the claim of hostile work
environment harassment based on sex. The Commission REMANDS this matter
to the Agency for remedial action in accordance with this decision and
the order below.
ORDER
1. Within 60 calendar days after the date this decision becomes final,
the Agency shall give to Complainant an unconditional written offer of
reassignment as a sales clerk, or a substantially equivalent position,
to a postal facility near Eutawville, SC that is not the Eutawville
Post Office. Complainant shall have thirty (30) days to accept or
decline the offer of reassignment.7 If Complainant declines the offer
of reassignment, the Agency should take measures to ensure that the
Postmaster is no longer Complainant’s immediate supervisor.
2. The issue of compensatory damages is REMANDED to the Agency.
On remand, the Agency shall conduct a supplemental investigation determine
Complainant’s entitlement to compensatory damages under Title VII.
The Agency shall give Complainant notice of her right to submit evidence
of pecuniary and non-pecuniary damages. For guidance on what evidence
is necessary to prove pecuniary and non-pecuniary damages, the parties
are directed to EEOC Enforcement Guidance: Compensatory and Punitive
Damages Available Under § 102 of the Civil Rights Act of 1991 (July 14,
1992) (available at http://www.eeoc.gov/policy/docs/damages.html), and
Carle v. Dep’t of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993).
The Agency shall complete the investigation and issue a final decision
addressing the issue of compensatory damages within 150 calendar days
after this decision becomes final. The final decision shall contain
appeal rights to the Commission. The Agency shall submit a copy of the
final decision to the Compliance Officer, as provided in the statement
titled “Implementation of the Commission's Decision.”
3. Within 90 days after the date this decision becomes final, the Agency
shall provide training to the responsible management official regarding
her obligations under Title VII concerning hostile work environment
harassment. If the official is no longer an employee of the Agency,
then the Agency shall furnish documentation of her departure date.
4. Within 90 days after the date this decision becomes final, the
Agency shall consider taking appropriate disciplinary action against
the responsible management official. 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 for its decision
not to impose discipline. If the responsible management official has
left the Agency's employment, the Agency shall furnish documentation of
her departure date.
The Agency shall provide a report of its compliance with paragraphs 1 to
4 of this Order to the Compliance Officer, as provided in the statement
titled “Implementation of the Commission's Decision.” The report
shall include evidence that the corrective actions have been implemented.
Copies must be sent to Complainant.
POSTING ORDER (G0610)
The Agency is ordered to post at its Eutawville Post Office in Eutawville,
SC 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.
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 (T0610)
This decision affirms the Agency’s final decision in part, but it
also requires the Agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion of
your complaint which the Commission has affirmed and that portion of the
complaint which has been remanded for continued administrative processing.
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 your appeal with the Commission, until such time as the Agency
issues its final decision on your complaint. 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 (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
___8/31/11_______________
Date
1 See, e.g., Stromquist v. U.S. Postal Serv., EEOC Request No. 05920529
(Aug. 6, 1992) (rejecting appellant’s contention that the previous
decision improperly addressed a discrimination issue on the merits because
only procedural issues were raised on appeal. “It is well settled that
on appeal from final agency decisions, the scope of review is the entire
record (citations omitted). The review on an appeal is not limited to
issues raised by the appellant.”); Charles v. Dep’t of the Navy,
EEOC Request No. 05880256 (Nov. 29, 1988) (rejecting appellant’s
assertion that the scope of the Commission’s appellate authority is
limited to issues raised by a party on appeal. “[W]hile the Commission
may exercise its discretion to decline to address matters uncontested
on appeal, such would not be appropriate where . . . there has been a
significant error . . . .”); see also Hill-Brown v. Dep’t of Transp.,
EEOC Appeal No. 0120071080 (Dec. 8, 2008) (addressing the merits of
an AJ’s summary judgment decision even though the complainant only
argued on appeal procedurally that her ability to present her case had
been compromised).
Here, the Agency was not prejudiced by the failure of Complainant
to brief the issue of hostile work environment harassment on appeal.
The Agency’s opposition brief addressed the merits of this claim, and
even offered an additional legal argument in the form of an affirmative
defense, which had not been addressed in the final agency decision.
Therefore, we find it appropriate in this case to address the merits of
this complaint.
2 The Commission, however, takes issue with the Agency’s legal
determination in its FAD that one use of the racial epithet “nigger”
can ever be sufficiently severe to constitute unlawful harassment.
We remind the Agency that the use of the racial epithet “nigger”
is a “highly charged epithet” which “dredge[s] up the entire
history of racial discrimination in this country.” See EEOC Compliance
Manual, Section 15, “Race and Color Discrimination,” No. 915.003,
15-38 (April 19, 2006); Brooks v. Dep’t of the Navy, EEOC Request
No. 05950484 (June 25, 1996). Moreover, the fact that such remarks are
not specifically directed toward a specific employee is not dispositive.
See Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185-86 (4th Cir. 2001)
(racial harassment not directed specifically at plaintiff, but part of
plaintiff's work environment, could be actionable).
3 Complainant described other work-related incidents in her affidavit,
but did not specify whether they occurred before or after she had
contacted an EEO counselor. For example, Complainant maintains that the
Postmaster openly criticized her in front of employees and customers.
On one occasion, the Postmaster snatched mail out of Complainant’s hand
while she was attending to a customer. Complainant also alleged one
instance when the Postmaster counseled her about her work performance,
and warned her that she could be issued a letter of warning if her
performance did not improve.
4 This witness was interviewed by the Agency manager as part of the
Agency’s investigation into the harassment allegations. The Agency
manager memorialized her statement in a November 21, 2007 memorandum.
It does not appear that the EEO investigator interviewed this witness.
5 Because we find that the pushing was based on Complainant’s sex, we
decline to address Complainant’s claim of disability-based harassment,
which deals with the same physical conduct.
6 A tangible employment action is a significant change in employment
status, such as hiring, firing, suspension, nonpromotion, reassignment
with significantly different responsibilities, or significant changes
in benefits. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761
(1998); Winston v. Dep’t of Health and Human Services, EEOC Appeal
No. 01985752 (Dec. 13, 2000). Here, the conduct in question consisted
of verbal remarks and physical contact, which are not tangible employment
actions.
7 The Commission has previously allowed for a harassed complainant to be
reassigned where the complainant voluntarily requested the reassignment.
See, e.g., Philips v. U.S. Postal Serv., EEOC Appeal No. 01985285 (June
28, 2001) (“The agency should take note that although the Commission has
upheld the reassignment of a harassment complainant, we have done so only
where the complainant requested the reassignment (citations omitted).
Unless the transfer of the harassment victim is voluntary, it cannot
constitute effective remedial action.”); Van Wolken v. Dep’t of
Homeland Security, EEOC Appeal No. 07A30134 (May 11, 2004) (upholding an
AJ’s order for the agency to offer a harassed complainant a lateral
reassignment to another facility because Complainant had specifically
requested a transfer as part of her “make whole” relief.). Here,
allowing Complainant to have the opportunity to accept or decline an
offer of reassignment to another facility is appropriate because in
her formal complaint she specifically requested as one of her remedies
“immediate reassignment to another installation.”
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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