0120064683_jean-louis
07-23-2009
Angela M. Jean-Louis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Angela M. Jean-Louis,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120064683
(formerly Appeal No. 01A64683)
Agency No. 4G-700-0014-06
DECISION
On August 8, 2006, complainant filed an appeal from the agency's undated final decision (FAD) 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. The appeal is deemed timely and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission reverses in part and affirms in part the agency's final decision.
ISSUE PRESENTED
Whether the agency is liable for coworker sexual harassment for its alleged failure to take immediate and appropriate remedial action?
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as a Full-Time Mail Processing Clerk at the agency's Lafayette Post Office in Lafayette, Louisiana. The record reflects that on September 27, 2005, complainant and a co-worker (CW1) had a verbal and physical altercation. According to complainant, while CW1 looked at complainant, he pulled up his apron and began to touch, grab, and play with his genitals. Complainant believed that CW1's actions were as if he was masturbating and CW1 shouted lewd comments to complainant. When complainant returned to her work station, CW1 continued to make sexual gestures and shouted sexual obscenities. Complainant contends that she walked over to CW1 and pretended to spit on CW1 twice then returned to her machine. Complainant alleged that CW1 then walked to complainant's machine and kicked her in her buttocks, her lower back and the left side of her face. Complainant did not respond to CW1, but walked to the office and reported the incident. Complainant left the office for medical assistance. When she returned, she was placed in an off-duty pay status. CW1 denied that he made lewd gestures or comments to complainant or touched her. However, CW1 accuses complainant of actually spitting on him.
On October 3, 2005, the agency notified complainant that she had received an Emergency Placement in Off-Duty Status for Unacceptable Conduct: Physical Altercation with an Employee. The agency investigated the incident. On October 31, 2005, the agency issued complainant a Notice of Removal for Unacceptable/Improper Conduct/Altercation.
On January 26, 2006, complainant filed an EEO complaint. Therein, complainant claimed that she was discriminated against on the bases of sex and reprisal for prior protected activity when:
1. on September 27, 2005, complainant was sexually harassed by another employee and placed in an off-duty (without) pay status for Unacceptable Conduct: Physical Altercation with an Employee; and
2. complainant was issued a Notice of Removal, dated October 31, 2005, charging her with Unacceptable/Improper Conduct/Altercation, effective December 10, 2005.
The complaint contained an additional claim which the agency previously dismissed as untimely.1 At the conclusion of the investigation, complainant was provided with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ).
In accordance with complainant's request, the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that complainant failed to prove that she was subjected to discrimination as alleged. In its FAD, the agency found that complainant failed to establish a prima facie case of sex discrimination or retaliation. Further, it found that complainant failed to proffer evidence to rebut the agency's proffered reasons for its actions.
ANALYSIS AND FINDING
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a); EEOC Management Directive 110, Chapter 9, � VI.A. (November 9, 1999).
Regarding claim (1), the record reflects that on September 27, 2005, at approximately 3:00 AM, an altercation occurred between complainant and CW1. The exact nature of that altercation is disputed by the parties. However, we find that the record supports the following facts: On September 27, 2005, complainant was walking from the staging area when she saw CW1 sitting on the rail next to his machine looking at her as he pulled up his apron and began to touch, grab and play with his genitals. Complainant interpreted CW1's gestures as simulated masturbation. CW1 shouted at her "that is what you need, you need my d***, you need a big d***." Complainant stated that when she got to her machine CW1 got up from the railing and he was standing still shouting to her that "you need to suck my d***, I'm going to put my d*** in your p****." CW1 began to lick his lips and sticking his tongue out at her. Complainant stated that she looked at CW1 and pretended that she was going to spit on him. CW1 continued to shout and make sexual gestures towards her. Complainant again pretended to spit on him. Complainant walked a little closer to CW1 and this time she actually spat on him. Thereafter, CW1 walked up to complainant and kicked her on her buttocks, the lower part of her back and the left side of her face. Complainant walked to the office and reported the incident.
We find that complainant's recitation of CW1's behavior during the altercation is supported by the record. One of complainant's co-workers, CW2, a Full-Time Mail Processing Clerk, provided an affidavit stating that on September 27, 2005, complainant went to pick up her mail at the staging area and CW2 heard CW1 talking and laughing loudly while complainant walked back to her machine. CW2 stated that there was considerable noise, laughter and commotion. Further, CW2 provided that CW1 continued to talk loudly and made a comment to complainant. CW2 indicated that complainant turned around and spat toward CW1, but not on him. CW2 stated she did not hear CW1 make any sexual comments to complainant, but she saw CW1 kick complainant twice in the buttocks.2
Further, the EEO Counselor's Report contains a typed summary of a statement by complainant's supervisor regarding the incident. A supervisor (S1) stated that complainant first reported the incident to her. S1 collected the statements from the witnesses and conducted the incident investigation. S1 stated that it was her opinion that CW1 harassed complainant. S1 also provided that she had heard other reports of CW1's behavior in the past but had not been able to confirm them. Further, S1 provided that as a result of her investigation she believed that CW1 kicked complainant and that complainant actually spat on CW1. The record also contains affidavit evidence from witnesses who stated that complainant spat on CW1.
Additionally, the record contains a police report, dated September 28, 2005, stating that complainant was a victim of a "simple battery" on September 27, 2005. Further, complainant submitted medical documentation dated September 28, 2005, showing that she received medical treatment at her local emergency medical center and she was diagnosed with minor bruising. The medical documentation reflects that complainant stated that she had been kicked on the lower back and face at work. However, we note that the record contains affidavit statements from CW1, and witnesses who state that they did not see or hear CW1 make obscene gestures or comments or see CW1 kick complainant. Nevertheless, the Commission finds that complainant offered sufficient evidence, including her affidavit testimony, the testimony of her witness and S1, as well as the medical documentation and the police report, to establish that the incident occurred as she alleged.
We note that in its FAD, the agency failed to address complainant's allegation that she was subjected to unlawful harassment on September 27, 2005. However, complainant's formal complaint clearly alleges that she was subjected to unlawful harassment by CW1. We therefore analyze whether complainant established that she was harassed as alleged.
It is well-settled that sexual harassment is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under this basis, the complainant must show that: (a) she belongs to the statutorily protected class; (b) she was subjected to unwelcome conduct related to her membership in that class; (c) the harassment complained of was based on sex; (d) 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 (e) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
We find that complainant established that she belongs to the statutorily protected class based on her sex. Further, the record reveals that she was subjected to unwelcome conduct related to and based on sex when CW1 simulated masturbation and made lewd comments to complainant. We find that complainant showed that the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment. CW1's sexually explicit comments, his rubbing of his genitalia in view of complainant, and his repeated kicking of complainant were sufficiently severe to render complainant's work environment hostile. As such, we find that complainant was subjected to a hostile work environment.
Since we have determined that CW1's actions created a hostile work environment for complainant, we now turn to the question of whether the agency is liable for CW1's actions. In the case of co-worker harassment, an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. 29 C.F.R. �1604.11(d); Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, No. 915.002 (June 18, 1999) (Enforcement Guidance). What is appropriate remedial action will necessarily depend on the particular facts of the case, such as the severity and persistence of the harassment and the effectiveness of any initial remedial steps. See Taylor v. Dept. Of Air Force, EEOC Request No. 05920194 (July 8, 1992). However, when an employer receives a complaint or otherwise learns of alleged sexual harassment in the workplace, the employer should investigate promptly and thoroughly. Policy Guidance on Current Issues of Sexual Harassment, N-915-050 (March 19, 1990). The employer should take immediate and appropriate corrective action by doing whatever is necessary to end the harassment, make the victim whole by restoring lost employment benefits or opportunities, and prevent the misconduct from recurring. Id. Disciplinary action against the offending supervisor or employee, ranging from reprimand to discharge, may be necessary. Generally, the corrective action should reflect the severity of the conduct. Id.
After the agency was notified about the September 27, 2005 events, complainant and CW1 were placed on off-duty status on September 27, 2005, beginning at 4:00 AM. In a letter dated October 31, 2005, the agency issued complainant a Notice of Proposed Removal, effective Saturday, December 10, 2005. The agency provided that complainant was removed due to the altercation that occurred on September 27, 2005. In a letter dated October 31, 2005, CW1 was also issued a Notice of Proposed Removal, effective 30 days after his receipt of the letter. The record reflects that the agency engaged in an investigation on October 4, 2005. The record also reflects that both complainant and CW1 were reinstated as a result of two separate Pre-Arbitration settlement agreements. 3
As the agency explains in its FAD, the agency's only response to the events of September 27, 2005 was to impose identical discipline on complainant and CW1, i.e. immediate suspension and proposed removal. That disciplinary action was based on the physical altercation between complainant and CW1. In doing so, the agency completely failed to acknowledge CW1's pre-altercation conduct and complainant's allegations of harassment. The agency's response completely ignores the outrageous sexual aspect of the events and only addresses the physical confrontation.
The agency does not acknowledge that CW1's conduct constituted sexual harassment, but instead treats two employees in an identical manner for spitting on and kicking one another in an altercation. Nor is there any indication that the MDO, who admittedly was aware that complainant had much earlier complained about sexual harassment by CW2 and others, ever took any specific action to address those allegations in such a manner which could have prevented the conduct by CW1 which occurred herein. Certainly, the agency's response to the later September 2005 sexual harassment should, at a minimum, have included training of the work force about the nature and consequences of such harassment. We order the agency to provide such training below. As 29 C.F.R. � 1604.11(d) makes clear, the burden is on the agency to demonstrate that it took appropriate corrective action. It has not done so here.
Accordingly, we find the agency is liable for CW1's sexual harassment of complainant. Since the record is devoid of any evidence regarding any compensatory damages requested by complainant, we remand the issue of compensatory damages to the agency.4
We now turn to complainant's remaining claims that she was discriminated against when the agency placed her in an off-duty (without) pay status for unacceptable conduct and issued her a Notice of Removal, effective December 10, 2005. To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the agency has articulated legitimate and nondiscriminatory reasons for its conduct. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail, complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
We find that assuming, arguendo, that complainant established a prima facie case of sex discrimination and retaliation, the agency articulated legitimate, nondiscriminatory reasons for its action, i.e., that she had spat on CW1. Since the agency articulated a legitimate, nondiscriminatory reason for its actions, we turn to complainant's burden to prove by a preponderance of the evidence that the agency's proffered reason was a pretext for discrimination or retaliation. We find that complainant failed to put forth any evidence that the agency's actions were taken due to discriminatory or retaliatory animus. Therefore, we affirm the agency's finding that complainant failed to prove she was subjected to disparate treatment with regard to these claims.
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we reverse in part and affirm in part the agency's FAD finding no discrimination. The Commission finds that complainant was subjected to sexual harassment for which the agency was liable. The agency is required to comply with the order below.
ORDER
Within thirty (30) days from when this decision becomes final:
1. The agency shall conduct training for all co-workers and management officials involved in this case regarding their obligations under Title VII, with an emphasis on sexual harassment.
2. The agency shall consider taking appropriate disciplinary action against CW1 and the responsible management officials. The Commission does not consider training to be disciplinary action. The agency shall report its decision to the compliance officer. If the agency decides to take disciplinary action, it shall identify the action taken. If the agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the agency's employ, the agency shall furnish documentation of their departure date(s).
3. Within thirty (30) calendar days of the date this decision becomes final, the agency shall conduct a supplemental investigation to determine whether complainant is entitled to compensatory damages incurred as a result of the agency's discriminatory actions. The agency shall allow complainant to present evidence in support of her compensatory damages claim. Complainant shall cooperate with the agency in this regard. Thereafter, the agency shall issue a final decision. 29 C.F.R. � 1614.110(b). The supplemental investigation and issuance of the final decision must be completed within sixty (60) calendar days of the date this decision becomes final. A copy of the final decision must be submitted to the Compliance Officer, as referenced below.
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 (G0900)
The agency is ordered to post at its Lafayette Post Office in Lafayette, Louisiana 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 (K0408)
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, D.C. 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 (M1208)
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 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 (T0408)
This decision affirms the agency's final decision/action 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 (Z1008)
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
July 23, 2009
__________________
Date
1 In its letter of Partial Acceptance and Partial Dismissal, dated February 8, 2006, the agency dismissed complainant's claim alleging that on February 8 and 19, 2000 and November 14, 2001, she was sexually harassed by co-workers on the ground that complainant had filed in an untimely manner. We find that the record additionally reflects that with regard to the February 8, 2000 incident, complainant filed a formal complaint that was accepted for an investigation in Agency No. 4G-700-0103-00, which was withdrawn by complainant on November 30, 2001. Complainant also contacted an EEO Counselor regarding the November 14, 2001 incident in Agency No. 4G-700-0056-02, where the agency issued complainant a Notice of Right to File on July 23, 2002, but it appears no further action was taken by complainant.
2 CW2 further provided affidavit testimony that she noticed that complainant was being picked on or made fun of by CW1 whenever she would pick up her mail in the staging area. CW2 stated that sometimes she would go pick up the mail for complainant so that complainant could avoid CW1's taunts. Complainant alleged during the investigation that she had previously raised sexual comments by CW1 and others to agency management as recently as June 2005 but that nothing was done to prevent the subject incident from occurring. The agency Manager of Distribution and Operations who concurred in complainant's removal admitted that she was aware that complainant had raised such allegations, but characterized them as having been raised "4-5 years ago" and noted that no complaint had been pursued at that time.
3 The record reflects that complainant filed a grievance regarding her termination. On March 22, 2006, the agency and complainant entered into a Pre-Arbitration Settlement Agreement that provided that:
[Complainant] is to receive any and all pay and entitlements forfeited during the period she was placed in non-duty without pay status. [Complainant] is to be returned to the position and schedule held prior to the effective date of her removal (December 10, [2005]) as soon as administratively possible but not more than five (5) work days from the date of the agreement. All time lost due to the removal action will be considered as a time-served suspension.
4 The record reflects that complainant filed a grievance regarding her termination. On March 22, 2006, the agency and complainant entered into a Pre-Arbitration Settlement Agreement that provided that:
[Complainant] is to receive any and all pay and entitlements forfeited during the period she was placed in non-duty without pay status. [Complainant] is to be returned to the position and schedule held prior to the effective date of her removal (December 10, [2005]) as soon as administratively possible but not more than five (5) work days from the date of the agreement. All time lost due to the removal action will be considered as a time-served suspension.
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0120064683
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013