05990655
07-10-2000
Deborah J. Anderson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service,) Agency.
Deborah J. Anderson v. United States Postal Service
05990655
July 10, 2000
Deborah J. Anderson, )
Complainant, )
)
v. ) Request No. 05990655
) Appeal No. 01971483
William J. Henderson, ) Agency No. 1G-784-1013-94
Postmaster General, )
United States Postal Service,)
Agency. )
)
GRANT OF REQUEST FOR RECONSIDERATION
On March 31, 1999, Deborah J. Anderson (complainant) timely initiated
a request for the Equal Employment Opportunity Commission (EEOC or
Commission) to reconsider the decision in Deborah J. Anderson v. United
States Postal Service, EEOC Appeal No. 01971483 (March 3, 1999). EEOC
regulations provide that the Commissioners may, in their discretion,
reconsider any previous decision where the party demonstrates that:
(1) the previous decision involved clearly erroneous interpretation
of material fact or law; or (2) the decision will have a substantial
impact on the policies, practices, or operation of the agency. 64 Fed
Reg. 37,644, 37,659 (to be codified at 29 C.F.R. � 1614.405(b)).<1>
For the reasons that follow, complainant's request is GRANTED.
The record reflects that complainant filed a formal EEO complaint alleging
that the agency discriminated against her on the basis of sex (female)
when, following her disclosure to her supervisor that she was pregnant,
he told her that it would be in her best interest to resign and threatened
her with termination. The complaint also cited other instances of alleged
discriminatory treatment which complainant related to her supervisor's
knowledge of her pregnancy. The agency dismissed the complaint for
failure to state a claim, noting that no such action had been taken
against complainant. On appeal, the Commission found that complainant's
complaint stated a claim of hostile work environment harassment based
on sex, and remanded that allegation for processing. Deborah Anderson
v. U.S. Postal Service, EEOC Appeal No. 01945117 (December 7, 1994).
The agency investigated the complaint, and following the investigation
the case was heard before an EEOC administrative judge (AJ). However,
the AJ did not frame the issue as one of harassment, but rather as three
�terms and conditions of employment� matters: that complainant was
advised that it would be in her best interest to resign from the agency;
that complainant was denied workplace benefits; and that complainant's
performance was criticized. The AJ issued a recommended decision finding
no discrimination, which was accepted by the agency in its FAD.<2>
The previous decision affirmed.
In her request for reconsideration, complainant argues that the
AJ's decision erred in finding that complainant had not been treated
differently and less favorably subsequent to the disclosure that she was
pregnant, noting multiple incidents supported by corroborated testimony.
The agency did not reply to complainant's request.
As a preliminary matter, the Commission finds that the AJ erred as a
matter of law in the framing of the issue to be heard. In the prior
appeal decision, the Commission specifically found that complainant's
complaint stated a claim of hostile work environment discrimination
based on sex, and remanded that claim for processing. This error
was not harmless, as it led to complainant's complaint being analyzed
inappropriately. The Commission further notes that both the agency
and the AJ also erred with respect to the appropriate comparison group
for complainant. Complainant's treatment should not have been compared,
as the agency did, to other pregnant female transitional employees, of
whom there were none at the time. Complainant's treatment also should
not have been compared, as the AJ did, to other transitional employees
generally and non-pregnant females in particular. Rather, to the extent
that comparison employees may have been available, complainant should have
been compared to other transitional employees, male and female, having
medical conditions other than pregnancy. See Appendix to 29 C.F.R. Part
1604, Questions and Answers on the Pregnancy Discrimination Act; Bernardi
v. U.S. Postal Service, EEOC Appeal No. 01954090 (August 21, 1997).
Discrimination based on pregnancy is a form of discrimination based on
sex, and therefore violates Title VII. Id. The standards to establish
a claim of unlawful harassment under Title VII are well-settled. See,
e.g., Yake v. Dept. of the Navy, EEOC Appeal No. 01951770 (January
5, 1998). Harassment of an employee that would not occur but for
the employee's race, color, sex, national origin, age, disability,
or religion is unlawful if it is sufficiently patterned or pervasive.
McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985). However, in
order for harassment to be considered conduct in violation of Title VII,
it must be pervasive. Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th
Cir. 1987). The conduct in question is evaluated from the standpoint
of a reasonable person, taking into account the particular context
in which it occurred. Highlander v. K.F.C. National Management Co.,
805 F.2d 644 (6th Cir. 1986). Unless the conduct is very severe, a
single incident or group of isolated incidents will not be regarded as
discriminatory harassment. Walker v. Ford Motor Co., 684 F.2d 1355,
1358 (11th Cir. 1982). In order to support a finding of a hostile
work environment, more than a few isolated incidents of enmity must
have occurred. Hicks, 833 F.2d at 1415. For example, there must be
a steady barrage of opprobrious comments and not a casual comment or
accidental or sporadic conversation, in order to trigger equitable relief.
Snell v. Suffolk Co., 782 F.2d 1094 (2d Cir. 1986).
Complainant testified at the hearing that her immediate supervisor,
the Supervisor of Distribution Operations (the DO Supervisor), shortly
after learning she was pregnant, told her that it would be in her best
interest to resign because she was pregnant and eventually he would have
to fire her. Two witnesses, a male transitional employee (Witness 1)
and a female career employee (Witness 2), also testified that the DO
Supervisor made similar comments to them, expressing concern about
complainant's ability to do her job on account of her pregnancy, about
whether he would be able to accommodate her pregnancy-related restrictions
(she had none), and that he wished she would quit.
Complainant also testified that she was assigned to work on a machine
which had two tasks, ledging and sweeping, and that, one of the tasks
being more physically demanding than the other, it was customary for
the two employees assigned to the machine to switch tasks periodically.
Complainant further testified that after learning of her pregnancy,
the DO Supervisor moved her from machine to machine with such timing
that complainant was always in the position of having to perform the more
strenuous of the two tasks because whomever she replaced had just finished
his or her turn at the less strenuous task. Complainant testified that
on the rare occasions that she would be engaged in a task which was not
strenuous, such as casing bundled mail, the DO Supervisor would move
her to a strenuous task. This testimony was corroborated by Witness 1,
with whom complainant frequently worked.
Complainant testified that after learning of her pregnancy, the DO
Supervisor criticized her work performance, telling her to �hurry up�
when in fact she was completely caught up and there was nothing to
hurry; further, that when she inquired what she might do to improve her
performance, the DO Supervisor merely responded again to �hurry up.�
Witness 1 stated that he worked very quickly, and that complainant had
no trouble keeping up with him. Witness 2, a former supervisor, stated
that complainant did her share of the work and more.
Complainant also testified that while she had no medical restrictions
related to her pregnancy, she did have medical restrictions related to
a prior back injury, and that once the DO Supervisor learned she was
pregnant, in addition to the heavier machine work, he also assigned
her to do more lifting from low levels in violation of her medical
restrictions. Witness 1 testified to observing the increased amount
of lifting complainant was made to do. Further, complainant testified
that when she re-injured her back doing such lifting, on the return
trip from the hospital the DO Supervisor said to her, �How long are we
going to keep playing this game? Why don't you just quit?� According
to the foregoing testimony, these and other actions by the DO Supervisor
occurred on essentially a daily basis for a period of about one month.
The DO Supervisor, by contrast, testified that complainant inquired of
him about the effects of resigning her position. He denied all of the
negative comments attributed to him, denied increasing complainant's work
load, stated that he offered complainant lighter duties, and maintained
that he �treated her with kid gloves� because of his concern for her.
The agency produced no corroborating witnesses in support of the DO
Supervisor's testimony.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge 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). In this case, however,
the Commission finds that, apart from the errors of law discussed above,
the factual findings of the AJ are not supported by substantial evidence.
Complainant's testimony was straight-forward, detailed, consistent, and
corroborated by two witnesses with first-hand knowledge of the events
which formed the basis of the complaint. The AJ found no fault in the
credibility of these witnesses. Nonetheless, he inexplicably relied
upon the testimony of the DO Supervisor, despite having characterized
that testimony as �self-serving and less than candid,� despite the
testimony being uncorroborated and flatly contradicted on key points
by three witnesses whose credibility was not questioned, and despite
the DO Supervisor -- unlike complainant and Witnesses 1 and 2 -- having
answered many of the questions posed to him, �I don't recall.� Under
these circumstances, the Commission does not defer to the factual findings
of the AJ. The testimony presented at the hearing by complainant and
Witnesses 1 and 2 is sufficient to establish that the DO Supervisor
harassed complainant on the basis of her sex when he engaged in the
foregoing conduct after learning of complainant's pregnancy.
With regard to the remedy to be afforded complainant, the record reflects
that complainant stopped work on account of the re-injury of her back,
and has since been in receipt of workers' compensation wage-replacement
benefits. However, according to complainant's testimony, the re-injury
occurred on account of the DO Supervisor failing to honor complainant's
existing limitation on low-level lifting after he learned she was
pregnant. Complainant is therefore entitled to back pay and benefits
for the period she has been out of work on account of her back injury
notwithstanding her receipt of workers' compensation benefits,<3>
although the agency is entitled to off-set. See, e.g., Finlay v.
U.S. Postal Service, EEOC Appeal No. 01942985 (April 30, 1997). Further,
complainant has requested, and gave testimony regarding, her entitlement
to compensatory damages. The record reflects that additional evidence
bearing on compensatory damages was submitted to the AJ subsequent to
the hearing, but this information was not made a part of the record.
Complainant therefore will be afforded the opportunity to submit evidence
bearing on compensatory damages directly to the agency, and the agency
thereafter will determine the extent of complainant's entitlement to
such damages.
After a review of complainant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that complainant's
request meets the criteria of 29 C.F.R. � 1614.405(b), and it is
therefore the decision of the Commission to GRANT complainant's request.
The decision of the Commission in Appeal No. 01971483 is REVERSED.
There is no further right of administrative appeal from a decision of
the Commission on a request for reconsideration.
ORDER
The agency is ORDERED to take the following remedial action:
(1) The agency shall tender back pay and benefits retroactive to February
10, 1994, and ending on the expiration date of complainant's appointment
as a transitional employee, offset by the amount of workers' compensation
wage-replacement benefits complainant has received, in accordance with
the procedures set forth in the paragraph below. If complainant's
appointment would have been renewed absent the discrimination, she is
entitled to back pay and benefits for the period of renewal as well.
(2) Within ten (10) days of its receipt of this decision, the agency
shall solicit from complainant evidence bearing on her entitlement to
compensatory damages. The agency shall afford complainant no fewer
than forty-five (45) calendar days from her receipt of its request to
provide such information. The agency shall then determine the extent
of complainant's entitlement to compensatory damages, and pay any such
damages forthwith.
(3) Within ninety (90) days of its receipt of this decision, the agency
shall provide the Supervisor, Distribution Operations, with EEO training
regarding his obligations under Title VII and the Pregnancy Discrimination
Act.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant, pursuant to
29 C.F.R. � 1614.501, no later than sixty (60) calendar days after the
date it receives this decision. The complainant shall cooperate in the
agency's efforts to compute the amount of back pay and benefits due,
and shall provide all relevant information requested by the agency.
If there is a dispute regarding the exact amount of back pay and/or
benefits, the agency shall issue a check to the complainant for the
undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. The complainant
may petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
�Implementation of the Commission's Decision.�
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 of the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to the
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant has the right to file a
civil action on the underlying complaint in accordance with the paragraph
below entitled �Right to File A Civil Action.� 29 C.F.R. �� 1614.407
and 1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. �
2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
POSTING ORDER (G1092)
The agency is ORDERED to post at its Hector P. Garcia Post Office
facility copies of the attached notice. Copies of the notice, after
being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled �Implementation of the Commission's Decision,� within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to
an award of reasonable attorney's fees incurred in the processing of the
complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall
be paid by the agency. The attorney shall submit a verified statement of
fees to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
STATEMENT OF RIGHTS -- ON RECONSIDERATION
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. 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:
July 10, 2000
Date Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________ ____________________________________
Date Equal Opportunity Specialist
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that
a violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of that person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions, or privileges of employment.
The United States Postal Service, Hector P. Garcia Post Office, supports
and will comply with such Federal law and will not take action against
individuals because they have exercised their rights under law.
The United States Postal Service, Hector P. Garcia Post Office, has
been found to have discriminated against the individual affected by
the Commission's finding. The United States Postal Service, Hector
P. Garcia Post Office, shall pay the affected individual back pay and
benefits, proven compensatory damages, and reasonable attorney fees
and costs, and shall provide EEO training for the management official
found to have discriminated against the affected individual. The United
States Postal Service, Hector P. Garcia Post Office, will ensure that
officials responsible for personnel decisions and terms and conditions
of employment will abide by the requirements of all Federal equal
employment opportunity laws and will not retaliate against employees
who file EEO complaints.
The United States Postal Service, Hector P. Garcia Post Office, will
not in any manner restrain, interfere, coerce, or retaliate against
any individual who exercises his or her right to oppose practices made
unlawful by, or who participates in proceedings pursuant to, Federal
equal employment opportunity law.
_________________________
Date Posted: ____________________
Posting Expires: _________________
29 C.F.R. Part 1614
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Under the regulations then in effect, the decision of an AJ could be
accepted, rejected, or modified by an agency. Under the Commission's
revised regulations, the decision of an AJ is binding on both parties,
subject to the right of appeal to the Commission. 64 Fed. Reg. 37,
644 37,657 (1999) (to be codified at 29 C.F.R. � 1614.110(a)).
3The record reflects that complainant, as a transitional employee,
held a 360-day appointment.