01996577
07-09-2002
Alma W. Reneau, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Alma W. Reneau v. United States Postal Service
01996577
July 9, 2002
.
Alma W. Reneau,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01996577
Agency Nos. 4-G-700-1115-95
4-G-700-1152-95
Hearing Nos. 270-97-9038X
270-97-9039X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her formal complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
reverses the agency's final decision.
Complainant, employed as a Clerk-Stenographer, PS 05, in the Customer
Services Operations Office at the agency's main post office in New
Orleans, Louisiana facility at the time of the alleged discriminatory
events, filed two formal complaints on August 14, 1995, in which she
alleged that she was subjected to sexual harassment on the basis of sex,
and retaliated against when she was reassigned to a different supervisor
and subsequently terminated as a result of prior EEO activity.<1>
Both complaints were accepted for investigation. At the conclusion of
the investigation, complainant requested a hearing on both complaints.
Accordingly, her cases were forwarded to the appropriate EEOC District
Office and assigned to an Administrative Judge (AJ). After consolidating
the cases for further administrative processing and holding a hearing,
the AJ issued a finding of discrimination regarding the sexual harassment
and termination, and a finding of no discrimination regarding the
reassignment.
Concerning the sexual harassment allegation, the AJ found that
complainant's version of the sexually inappropriate conduct to which
she was subjected was credible. The Commission notes that the sexually
inappropriate conduct herein involved complainant's supervisor, the
manager of Customer Service Operations (the Manager), making a series of
sexual remarks toward complainant designed to pressure her into having
sex with him. Specifically, the conduct involved the Manager asking
complainant questions and making statements to her like the following;
�Is the reason I cannot be with you sexually because I am not Black?�,
�If I were Black maybe I would have a chance to be with you sexually.�,
�Are we going to have sex or what?�, �Are you serious, we are not going
to have sex?�, and �How long am I going to have to wait for you to
change your mind?� The conduct also involved touching and pinching.
After determining that complainant's testimony regarding the sexual
conduct to which she was subject was credible, the AJ then determined
that complainant was a member of a protected class, was subjected to
unwelcome conduct, the conduct was based upon her membership in that
protected class, and the conduct affected and unreasonably interfered
with her work performance. Based on the aforementioned determinations,
the AJ concluded that complainant established a prima facie case of
hostile environment harassment.
Next, the AJ, using the standards enunciated by the Supreme Court
regarding employer liability for unlawful harassment by supervisors,
noted that the agency could not avoid liability unless it could make out
the following two-prong affirmative defense, namely, that it exercised
reasonable care to prevent and promptly correct the harassing behavior
and that complainant unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer or to
avoid harm otherwise. She then found that the agency was precluded from
invoking the affirmative defense.<2> She further found that absent such
preclusion, the agency failed to successfully establish either prong of
the affirmative defense, and therefore held that the agency was liable
to complainant for harassment. The Commission notes that complainant
told two agency management officials of the harassment but neither of
them took action, albeit at complainant's request.
Concerning the reassignment, the AJ found that complainant failed to
establish a prima facie case of discrimination because her reassignment to
a different supervisor was not a denial of a term, benefit, or privilege
of employment, and therefore failed to state a claim. In addressing
the issue of termination, the AJ found that complainant had successfully
shown the existence of a prima facie case of reprisal because (1) she had
engaged in protected activity, (2) the responsible management official
(i.e., the Manager) was aware of the activity, (3) complainant was
disadvantaged by the termination, and (4) the protected activity and the
termination occurred within two weeks of each other thereby establishing
the requisite nexus. The AJ then found that the agency articulated
a legitimate, nondiscriminatory reason for its actions, namely, that
complainant was terminated for using the identification number of
another employee to enter her time and claimed unauthorized overtime.
Finally, the AJ found that the agency's articulated reason was a pretext
for discrimination because the employee who allowed complainant to use
her identification number was not disciplined or removed.<3> Regarding
pretext, the AJ also found that the Manager knew complainant claimed
overtime on days she did not work, but worked longer hours on other days
and spread the time over the pay period to avoid penalty overtime. In so
doing, the AJ noted that at least one other employee engaged in the same
practice and was not disciplined. Consequently, she found that the agency
engaged in unlawful retaliation in its decision to terminate complainant.
In its final decision, the agency accepted the AJ's finding of no
discrimination regarding reassignment, but rejected her finding of
discrimination regarding sexual harassment and termination. In rejecting
the AJ's discrimination finding regarding sexual harassment, the agency
stated that there were no witnesses to corroborate complainant's testimony
concerning the Manager's alleged harassing behavior. The agency further
stated that the fact that complainant told several individuals about
the harassment did not make it factual, and the two management officials
to whom she reported the harassment were her friends, both of whom she
asked to keep the matter confidential. Finally the agency stated that
the AJ's credibility finding (which was, at least in part, grounded in the
fact that the Manager never denied the harassment charges) regarding this
allegation was erroneous because the Manager was never asked whether he
committed the harassing acts. In rejecting the finding of discrimination
regarding the termination, the agency merely restated the legitimate
nondiscriminatory reasons considered by the AJ, but did not address the
AJ's pretext analysis. Complainant appealed the agency's final decision.
On appeal, complainant contends that the agency's final decision is
erroneous. The arguments made to prove her contention are the same
arguments made before the AJ and therefore do not need to be readdressed.
The Commission, however, will address complainant's arguments regarding
reassignment and complainant's belief that the reassignment occurred
because she did not succumb to the Manager's sexual advances.
In materials submitted to support her appeal, complainant argues
that the person to whom she was reassigned (Supervisor) reported,
like her, to the Manager. Complainant further argues that once the
reassignment occurred, she was stripped of her time keeping duties and
had new reporting procedures. Finally, complainant argues that she was
placed under the Supervisor as punishment because of the Supervisor's
reputation for being a harasser and severe discipliner as evidenced
by the fact that she was detailed to work under the Manager because
in her regular capacity as Supervisor in the Carrier Delivery area,
many employees and union officials had lodged complaints against her.
The agency submitted no new arguments on appeal.
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).
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws regarding her
findings of discrimination as to the sexual harassment and termination
allegations. However, the Commission disagrees with the AJ regarding
whether complainant's reassignment amounted to a denial of a term,
benefit, or privilege of employment. In so doing, we note that the
agency, in its decision, stated that if complainant was really being
sexually harassed by the Manager, then she would not have been bothered
by reporting to someone other than he. However, it is the Commission's
view that complainant is not contesting her reassignment to another
supervisor, but rather the facts that: (1) she was reassigned to a
Supervisor known for having poor relations with her subordinates and,
(2) some of her duties were taken away.
Now that we have determined that complainant's reassignment constituted
a denial of a term, benefit, or privilege of employment and therefore
stated a claim, we must now consider whether the reassignment was a
result of the sexual harassment. We find that it was. Specifically,
we find credible complainant's assertion that the Manager told her
that he was reassigning her because his attempts to get to know her
were not working. This finding necessitates a finding that the sexual
harassment to which complainant was subjected resulted in a tangible
employment action, thereby making the agency automatically liable for
that employment action. See Burlington Industries, Inc. v. Ellerth,
524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998)
(holding that an employer is always liable for a supervisor's harassment
if it culminates in a tangible employment action).
Based on the foregoing, the Commission finds that the agency's rejection
of the AJ's findings of discrimination was erroneous, and is therefore
reversed. Moreover, we find that the agency's acceptance of the AJ's
finding of no discrimination was also erroneous, and reverse that
determination as well. The agency is ordered to take corrective action
pursuant to the order below.
ORDER
(1) The agency shall remove the fourteen-day suspension from complainant's
employment records.
(2) The agency shall award complainant the appropriate amount of backpay,
with interest, for the fourteen-day suspension she served.
(3) The agency shall conduct a supplemental investigation regarding
compensatory damages for mental anguish, medical expenses and
any other losses incurred as a result of the harassment found in
this decision.<4> The complainant is ordered to cooperate with the
supplemental investigation by providing all necessary information that
the agency requests to help it determine any damages and or awards due.
After conducting the supplemental investigation, the agency shall give
the complainant a copy of the investigative report and provide her, in
writing, an opportunity to submit additional information to be included in
the investigation. If there is a dispute about the amount of compensatory
damages, the agency shall issue a check to the complainant for the
undisputed amount. The complainant may file a petition for enforcement
or clarification of the disputed amount with the Compliance Officer,
Office of Federal Operations, Equal Employment Opportunity Commission,
P.O. Box 19848, Washington, D.C. 20036.
(4) The agency shall train the Manager, Supervisor, and the two
management officials who failed to take action once being put on notice
that complainant was being harassed in the area of sexual harassment under
Title VII, and how to avoid perpetrating such harassment. This training
shall include a segment regarding how to recognize and prevent sexual
harassment, steps that should be taken when an employee complains of
such harassment, and how to avoid retaliating against an employee who
complains of such harassment.
(5) The agency shall consider taking disciplinary action against
the Manager and the Supervisor. The agency shall report its decision.
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.
(6) The agency shall complete all of the above actions within ninety
(90) calendar days from the date on which the decision becomes final.
(7) 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 correction action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Main Post Office in New Orleans,
Lousiana 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 (H0900)
If complainant has been represented by an attorney (as defined by
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 (K0501)
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)
(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 (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 9, 2002
__________________
Date
1The allegations regarding sexual harassment and reassignment were
contained in one complaint, while the allegation regarding termination
was contained in the other. Additionally, for our purposes it is
important to note that the termination was modified following a
grievance to a 14-day suspension by an arbitrator who reasoned that
�[m]anagement cannot allow procedures to be used that are not appropriate
when it serves its purpose and then bring charges against an employee
implementing those procedures when it does not.�
2It is unclear whether the AJ's finding that the agency was precluded
from invoking the affirmative defense is based on the notion that the
harassment resulted in a tangible employment action (i.e., reassignment
and/or termination) because in her decision, the AJ (1) did not address
the issue of tangible employment action, but instead focused exclusively
on hostile work environment; (2) found that the reassignment did not
constitute a denial of a term, benefit, or privilege of employment; and
(3) used the disparate treatment analysis as opposed to the harassment
analysis when discussing the termination.
3The AJ found credible complainant's contentions that the employee gave
her the identification and told her to use it to enter her own time,
and that the Manager knew about it.
4 For guidance on investigating compensatory damages, see Carle
v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)
and Compensatory and Punitive Damages Available Under Section 102 of
the Civil Rights Act of 1991, EEOC Notice No. N 915.002 (July 14, 1992).