05A10581
09-06-2001
Sandra Yaccarino, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (N.Y. Metro Area), Agency.
Sandra Yaccarino v. United States Postal Service
05A10581
September 6, 2001
.
Sandra Yaccarino,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(N.Y. Metro Area),
Agency.
Request No. 05A10581
Appeal No. 01A05735
Agency No. 4A088001199
Hearing No. EEOC 170-AO-8112X
DENIAL OF REQUEST FOR RECONSIDERATION
The agency initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Sandra
Yaccarino v. United States Postal Service, EEOC Appeal No. 01A05735
(April 4, 2001). EEOC Regulations provide that the Commission may, in
its discretion, reconsider any previous Commission decision where the
requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a rural letter carrier in the agency's Freehold, New Jersey
Post Office. Believing she was a victim of discrimination, complainant
sought EEO counseling and, subsequently, filed a formal complaint on
February 22, 1998. At the conclusion of the investigation, complainant
was provided a copy of the investigative file and requested a hearing
before an EEOC Administrative Judge (AJ). The AJ issued a decision,
without a hearing, finding no discrimination.
Complainant alleges that the Postmaster in the Freehold Post Office
began stalking her in 1993, after she returned to work at the Post
Office from an outside assignment. According to complainant, the
Postmaster's stalking occurred virtually every day. In November 1997,
the Postmaster installed a flashing red light by the mail �hot case� to
notify the carriers that the mail had been sorted and was ready to be
picked up. The Postmaster would announce over the intercom that the mail
was ready to be picked up at the �throbbing� or �pulsating� red light.
Complainant regarded the two words as conveying a sexual innuendo because
the Postmaster allegedly would exaggerate the words. In April 1998, as
a result of a complaint from another employee, the Postmaster stopped
using the words, but the stalking of complainant allegedly continued.
On October 5, 1998, the Postmaster called a meeting to announce a new
delivery procedure to the approximately 60 carriers who were present.
After complainant asked a question, the Postmaster responded by making
an allegedly obscene gesture simulating masturbation. According to
complainant, immediately after the incident, she wanted to report it to
the agency's sexual harassment hot line, but the Postmaster prevented her
by stalking her. Complainant contacted an EEO counselor on October 13,
1998, and alleged sexual harassment by the Postmaster.
The agency filed a motion with the AJ for a decision without a hearing.
In granting the motion, the AJ concluded that complainant's claim of
sexual harassment with regard to the events at issue which occurred prior
to October 5, 1998, were untimely. The AJ further found that the singular
event which occurred on October 5, 1998, although timely raised, was
insufficient to create a hostile work environment in violation of Title
VII. Finally, the AJ concluded that, even assuming the October 5, 1998,
incident, considered alone or in conjunction with the prior incidents
cited, created a hostile work environment based on sexual harassment,
the agency was not liable because the record showed: (1) it exercised
reasonable care to prevent and correct promptly the conduct alleged
to constitute sexual harassment; and (2) the complainant unreasonably
failed to avoid harm by taking advantage of the preventive or corrective
procedures available through the agency or otherwise, citing Burlington
Industries v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of
Boca Raton, 524 U.S. 775 (1998). The agency issued a final decision
adopting the AJ's decision.
Complainant appealed to the Commission, arguing that summary judgment
for the agency was inappropriate, and that the agency engaged in
discrimination. The Commission found in the prior decision that summary
judgment for the agency should not have been granted and remanded the
matter to the Hearings Unit of the appropriate EEOC field office.
The Commission found that complainant legitimately alleged a continuing
violation in the nature of continuing sexual harassment by the Postmaster.
The Commission further found that neither the AJ nor the agency properly
considered whether the matters alleged in the complaint constituted a
continuing violation, and thus that the AJ erred in finding that the
alleged incidents of sexual harassment prior to October 5, 1998 were
untimely raised. The Commission additionally found that the AJ erred in
finding that the agency established an affirmative defense to the alleged
hostile environment, because there was no indication that training was
provided by the agency to supervisors and employees to prevent harassment.
Finally, the Commission found that the AJ erred in granting summary
judgment to the agency, when she concluded that there was no genuine issue
of material fact in this case, reiterating: (1) that the AJ erroneously
found that those events at issue which occurred prior to October 5, 1998,
were untimely; (2) that the AJ erroneously found that the agency's motion
accurately set forth the relevant facts, when under the law of summary
judgment, the evidence of the non-moving party must be believed at the
summary judgment stage and all justifiable inferences must be drawn
in the non-moving party's favor; (3) that questions of credibility are
inevitably raised in sexual harassment and hostile environment claims;
and (4) that harassment claims and continuing violation claims are
particularly susceptible to fragmentation through which an agency can
improperly render non-meritorious, otherwise valid and cognizable claims.
On reconsideration, the agency argues that complainant was not the subject
of a continuing violation because complainant, prior to October 5, 1998,
had a reasonable suspicion of discrimination, with respect to the stalking
and red light actions by the Postmaster. The agency thus submits that
complainant had an obligation to timely contact an EEO Counselor at
the time she had a reasonable suspicion of discrimination. The agency
therefore argues that the AJ correctly concluded that complainant failed
to establish a hostile work environment during the 45-day period preceding
complainant's October [13], 1998, contact of an EEO Counselor. Finally,
the agency argues that it established its affirmative defense to the
alleged hostile environment.
ANALYSIS AND FINDINGS
Since the November 9, 1999 effective date of the changes in the 29
C.F.R. Part 1614 regulations and the Commission's Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110)
(as revised, November 9, 1999), the Commission has held that evidence
showing that a complainant had, or should have had, a reasonable suspicion
of discrimination more than 45 days prior to initiating EEO Counselor
contact, will not preclude acceptance of an otherwise timely claim of
ongoing discrimination. Anisman v. Department of Treasury, EEOC Request
No. 05A00283 (April 12, 2001) (improper fragmentation of a continuing
violation claim�because complainant contacted an EEO counselor within 45
calendar days of an occurrence of the allegedly on-going discriminatory
employment practice, his EEO counselor contact was timely as to that
allegedly unlawful employment practice, whether or not he suspected
discrimination more than 45-calendar days before his EEO counselor
contact); Howard - Grayson v. United States Postal Service, EEOC Request
No. 05990160 (December 3, 1999)(improper fragmentation of a continuing
violation claim); accord, Treschitta v. Department of Transportation, EEOC
Request No. 05990600 (January 13, 2000) (timely hostile work environment
claim involving incidents spanning an 18 month period). Accordingly,
the Commission rejects the agency's argument that since complainant
arguably had a reasonable suspicion of sexual harassment discrimination
beyond the 45-day period preceding her October 5, 1998, contact of an
EEO counselor, she was barred from raising them in this proceeding.
The agency's argument that the AJ correctly concluded that complainant
failed to establish a hostile work environment must therefore also fail.
The hostile work environment claim is not limited to the 45-day period
preceding her October 13, 1998, contact of an EEO counselor. Under
the complainant's continuing violation claim, the allegation of a hostile
work environment goes back to 1993, when the Postmaster allegedly began
stalking her.
Finally, the agency argues that the AJ was correct in granting summary
judgment for the agency on the ground that it had established its
affirmative defense. The agency argues that sexual harassment policies
were in place because the complainant knew where to file an EEO complaint
and the actions the agency took against the Postmaster when complainant
finally availed herself of the agency's policy in contacting the EEO
counselor. The agency further argues that complainant unreasonably failed
to avail herself of its preventive measures. As the previous decision
indicated, in terms of the agency exercising reasonable care to prevent
the conduct alleged to be sexual harassment, even on reconsideration,
the agency does not present any indication that training was provided
by the agency to supervisors and employees to prevent harassment.
The agency also does not respond to the prior decision's concern that
the agency had to be on notice, concerning the Postmaster's October 5,
1998, behavior, in view of the red light complaint in April 1998.
CONCLUSION
After a review of the agency's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the request
fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the
decision of the Commission to deny the request. The decision in EEOC
Appeal No. 01A05735 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of the
Commission on this request for reconsideration. This matter is remanded
to the Philadelphia, Pennsylvania, District Office in accordance with
this decision and the ORDER below.
ORDER
The Commission remands this complaint to the Hearings Unit of the
Philadelphia, Pennsylvania District Office to be assigned and scheduled
for a hearing in an expeditious manner. The agency is directed to submit
a copy of the complaint file to the EEOC Hearings Unit within fifteen
(15) calendar days of the date this decision becomes final. The agency
shall provide written notification to the Compliance Officer at the
address set forth below that the complaint file has been transmitted to
the Hearings Unit. Thereafter, the Administrative Judge shall issue a
decision on the complaint in accordance with 29 C.F.R. � 1614.109 and the
agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 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 29 C.F.R. � 1614.409.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to
file a civil action. Both the request and the civil action must be
filed within the time limits as stated in the paragraph above ("Right
to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 6, 2001
Date