01976837
04-06-2000
Debra A. Horkan, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Mid West Region) Agency.
Debra A. Horkan v. United States Postal Service
01976837
April 6, 2000
Debra A. Horkan, )
Complainant, )
) Appeal No. 01976837
v. ) Agency No. 4I-530-1104-94
) Hearing No. 260-97-9069X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Great Lakes/Mid West Region) )
Agency. )
____________________________________)
DECISION
On September 10, 1997, Debra A. Horkin (complainant) timely appealed
the final decision of the United States Postal Service (agency),
dated August 18, 1997, concluding she was not discriminated against in
violation of Title VII of the Civil Rights Act 0f 1964, as amended, 42
U.S.C. � 2000e et seq., and the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791 et seq.<1> In her complaint, complainant alleged that
she had been discriminated against on the bases of her sex (female) and
physical disability (post-trauma fibromyalgia and low back strain) when
she was allegedly harassed and subjected to a hostile work environment
by her coworkers and a supervisor. The appeal is accepted pursuant
to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. �
1614.405).<2>
At the time the events at issue occurred, complainant was employed as a
Distribution Clerk at the New Berlin, Wisconsin, Post Office. She retired
from the postal service on March 3, 1995 with a disability retirement.
Medical evidence establishes that, throughout the period in question,
complainant experienced chronic low and middle back pain as a result of
injuries incurred in a September 1992 automobile accident. As a result of
her condition, complainant was restricted to working four hours per day.
She was also restricted from more than light lifting (10-15 lbs.), from
prolonged standing (more than one hour) or sitting (more than two hours),
from bending, twisting, squatting, climbing and reaching. Although she
was prescribed an ongoing course of physical therapy, daily use of
pain medication and the use of a TENS unit, her physician indicated
that her condition was "static" and that she could only be helped to
"adjust to living with persistent pain." Medical records also indicated
that complainant experienced persistent trouble sleeping and "secondary
emotional concerns" due to the long-term pain she was experiencing.
In December 1993, complainant submitted her initial application for
disability retirement from the agency. She asserts that she had requested
that agency's management keep her application confidential. However,
on December 6, 1993, several of her male coworkers made disparaging
comments to her about employees who go out on disability retirement in
an apparent reference to complainant's recent disability application.
The comments reduced complainant to tears. A female coworker who had
observed the incident went to the Manager and asked him to intervene.
She said that the Manager rolled his eyes in response.<3> However, the
Manager subsequently spoke with complainant and told her that he would
take care of the matter. He later had a brief discussion with the male
employees about the disparaging comments they made to complainant.
On December 22, 1993, one of the male employees engaged complainant in
conversation in which he is alleged to have made the following comments
to her:
"...if you'd just be a little friendlier and smile more we might not
bother you as much."
"...when we see something bothers you we get on a roll and keep going --
you know that's the way we are."
"...we don't feel that you are entitled to vacation picks because you
are not here enough...you should owe the government annual leave."
"...you should tell [the Manager] that he should have a little meeting
with the clerks and explain your medical condition to us and then maybe
we will understand more and not bug you so much."
Complainant said that after this conversation, she again complained to
the Manager that she believed she was being harassed.
On January 4, 1994, complainant met with representatives from Labor
Relations and again complained of the alleged harassment by her coworkers.
At that time, she was told to submit written documentation which she
did several weeks later. In addition, on January 24, 1994, while
complainant was on vacation, a female coworker called her mother and
said that complainant should not return to work as planned because she
was worried about her safety. The female coworker said that a male
Supervisor had stated that complainant's "head was going to be blown off
when she would walk through the door Thursday morning."<4> Complainant
reported the threat to agency management and was told to report to work
at another facility (the Brookfield Post Office) for a couple of weeks
until the matter could be resolved. The alleged perpetrator was also
moved to another facility. Complainant said she felt victimized by
being displaced from her place of work. For the next few weeks, the
matter was under investigation by the agency's Postal Inspectors and
representatives from Labor Relations.
On March 1, 1994, a meeting occurred between complainant, the Brookfield
Manager and a Labor Relations Specialist to give complainant the results
of the investigation. The investigative report indicated that forty-seven
New Berlin employees (40 male and 7 female) were interviewed about the
facility, revealing a tense atmosphere made worse by staff shortages.
It was confirmed that negative "banter" was pervasive in the facility,
including remarks about wife bashing, negative generalizations applied to
all women, and demeaning comments about female public figures, light duty
employees and union stewards. It was also confirmed that complainant
had lodged complaints with management about her workplace environment
since March 1993. The report indicated that there was no evidence that
any of these comments had been made directly to complainant, although
there was some evidence of resentment towards complainant because of her
shorter hours and other absences due to union activities. The report
also indicated that "numerous" employees reported that the Supervisor
had made abusive or intimidating remarks including: expressing a wish
that complainant would be killed in a car accident on her vacation;
noting that you could take a contract out on someone for $5,000.00 in
response to a statement from one of complainant's coworkers that they
wanted to take out a contract on complainant; stating that "those bitches
are not going to take over" when referring to two female supervisors; and
describing female employees as "his girls." Witnesses also stated that
the Supervisor spoke with other employees about complainant's personal
financial situation and told them that she was suing all the clerks.
Complainant said that during the meeting to discuss the results of
the investigation no information was provided about the vacation
threat allegedly made by the Supervisor against her. In addition,
complainant felt there was an attempt to shift some of the blame on her.
She reported that she was told that there had been a meeting held with all
employees in the New Berlin facility to discuss unacceptable behavior,
including harassment of individuals with disabilities, sexual talk and
discrimination on the basis of sex. Complainant was told that employees
who engaged in such misconduct in the future would be disciplined.
Complainant was also asked if she wanted to return to New Berlin or if
the agency should locate another facility where she could be placed.
Instead of responding, complainant asked that other witnesses be
interviewed about the threat against her and was told that management
would get back to her. She said that after the meeting she felt sick
to her stomach and had chest pains for some days. She continued to
experience considerable anxiety and sought counseling.
The follow-up meeting was held on March 17, 1994 between management
officials, complainant, her union representative and a Labor Relations
Specialist. By this time, complainant had been working in the Brookfield
Post Office for seven weeks. She was told that she had to return to the
New Berlin office despite her continued discomfort with that option.
During this meeting, management told her that no witnesses had come
forward to corroborate the threatening remark against her. Complainant
said that, during the course of the meeting, management officials gave
her looks of anger and disgust at various times. She also alleged that
the Labor Relations Specialist (male) told her that she was sending
mixed messages to the men and that she had not communicated to them what
was offensive to her. Complainant responded that she had communicated
with management so that they could inform her coworkers to cease their
offensive conduct. She said that the managers warned her that isolated
comments from her coworkers would not result in disciplinary action from
management and that employees could not be made to stop talking as that
was "human."
On March 29, 1994, complainant returned to the New Berlin facility.<5>
On that date, she saw that her name had been scratched off the seniority
list which was posted in the facility. Complainant said she spoke to
the Manager about it but nothing was done. There was no evidence of
who removed complainant's name from the list and no evidence that she
was actually deprived of her seniority rights because of it.
On November 1, 1994, complainant filed a formal EEO complaint with
the agency, alleging that the agency had discriminated against her
as referenced above. The agency accepted the complaint and conducted
an investigation. At the conclusion of the investigation, complainant
requested an administrative hearing before an EEOC Administrative Judge
(AJ).
On July 25, 1997, after mediation attempts failed and at the parties'
request, the AJ issued a decision without a hearing based on the evidence
of record. In that decision, the AJ first concluded that complainant
had failed to establish her claim of disability discrimination. The AJ
also concluded that complainant failed to state a claim with respect to
her allegations concerning occurrences at two March 1994 meetings and
the removal of her name from a posted seniority list, because there was
no evidence that these incidents constituted adverse employment actions.
The AJ did, however, concluded that complainant had been subjected to
gender-based harassment, sufficient to create an unlawful hostile work
environment, when the agency failed to adequately protect her from the
ongoing negative comments of her male coworkers. Due to complainant's
retirement from the agency in March 1995, the AJ recommended compensatory
damages as relief for the emotional injuries complainant suffered as a
result of the harassment.
On August 18, 1997, the agency issued its final decision rejecting the
AJ's conclusion that it had unlawfully failed to protect complainant
from gender-based harassment pervasive enough to create a hostile
work environment in violation of Title VII. The agency supports
this conclusion with the position that it had not been shown that the
harassment complained of was linked to complainant's gender. Moreover,
the agency asserted that it took prompt corrective action to investigate
and protect complainant from any alleged harassment. It is from this
decision that complainant now appeals.
It is well established that an employer who creates or tolerates a
work environment which is permeated with "discriminatory intimidation,
ridicule, and insult," that "is sufficiently severe or pervasive to
alter the conditions of the victim's employment and create an abusive
working environment" is in violation of the employment discrimination laws
enforced by the Commission. Harris v. Forklift Systems Inc., 510 U.S. 17,
21 (1993). The agency argues that, in this case, the AJ erred in making
a finding of unlawful sex-based harassment because the incidents alleged
by complainant were isolated and, therefore, insufficiently severe or
pervasive. While the agency is correct that a single incident or group
of isolated incidents will not be regarded as discriminatory harassment
unless the conduct is severe, such a determination must be made only
after careful examination of all the circumstances of a particular case,
including the frequency of the discriminatory conduct, its severity,
whether it is physically threatening or humiliating, and whether it
unreasonably interfered with the complainant's work performance. Id.
To establish a prima facie case of hostile environment harassment, a
complainant must show that: (1) she belongs to a statutorily protected
class; (2) she was subjected to harassment in the form of unwelcome
verbal or physical conduct involving the protected class; (3) the
harassment complained of was based on the statutorily protected class;
and (4) the harassment affected a term or condition of employment,
and/or had the purpose or effect of unreasonably interfering with the
work environment and/or creating an intimidating, hostile or offensive
working environment. Jackson v. United States Postal Service, EEOC Appeal
No. 01972555 (April 15, 1999); 29 C.F.R. � 1604.11. Evidence of the
general work environment, involving employees other than the complainant,
is also relevant to the issue of whether a hostile environment existed
in violation of the anti-discrimination laws. Id.
To avoid liability for hostile environment harassment, an agency must
show, in the case of harassment by coworkers, that it neither knew or
should have known about the harassment, and/or that it took immediate
and appropriate corrective action as soon as it was put on notice of
the harassment. 29 C.F.R. � 1604.11(d). In the case of harassment
by a supervisor, the agency is liable for a supervisor's harassment
if it culminates in a tangible employment action. If it does not,
the agency may avoid liability, or limit damages, by establishing: (1)
that the agency exercised reasonable care to prevent and promptly correct
any harassing behavior; and (2) the complainant unreasonably failed to
take advantage of any preventative or corrective opportunities provided
by the agency. See EEOC's Enforcement Guidance: Vicarious Employer
Liability for Unlawful Harassment by Supervisors, Notice No. 915.007
(June 18, 1999) (hereinafter referred to as "Guidance on Vicarious
Liability for Harassment").<6>
After careful review of the record, the Commission finds that the evidence
supports a finding of harassment based on gender<7> and disability.
The record establishes that, at the time of the matters at issue,
complainant, whose range of motion was severely and permanently
compromised by her back injuries and the ensuing chronic pain, was
a qualified individual with a disability within the meaning of the
Rehabilitation Act. 29 C.F.R. � 1630.2(m). The evidence shows that
complainant was continuously subjected to demeaning and mean-spirited
comments from a number of her male coworkers over a significant period
of time which either expressed resentment towards the accommodations
complainant was receiving because of her disability or were negative
towards women in general. In addition, the evidence also establishes that
the Supervisor participated in the harassment, either tacitly by failing
to address the coworkers' comments despite complainant's complaints, or
explicitly by engaging in verbal harassment himself, including expressing
a desire that complainant be killed in an automobile accident and making
a physically threatening comment. There is also evidence that the
Supervisor encouraged the harassment of complainant by her coworkers by
sharing with them confidential information about complainant's disability,
financial situation, and her efforts to complain about their harassment.
In reaching its finding, the Commission also notes that the agency's own
investigation revealed that the atmosphere at the facility was replete
with remarks about wife bashing, negative generalizations applied to all
women, and demeaning comments about female public figures and employees
with disabilities on light or modified duty. This general atmosphere,
in combination with the actions directed personally at complainant, were
sufficiently severe and pervasive in nature as to alter the conditions
of complainant's employment and create an abusive working environment.
The record further supports a finding that agency management officials
were aware of the conduct in question, as the agency acknowledges that
complainant had reported being harassed by her coworkers at least as early
as October 1993. Moreover, contrary to the agency's assertions, it failed
to take immediate and appropriate corrective action as soon as it learned
of the harassing conduct. While management testified that employees
were spoken to individually and as a group about their inappropriate
conduct, we find that given the evidence regarding the frequency and
continuing nature of the harassment, it is clear that these actions
were not effective in causing an end to the discriminatory harassment.
The Commission notes, for example, that even after the agency finally
commenced an investigation in early January 1994 into complainant's
allegations, the Supervisor made threatening remarks about complainant.
The record further establishes that the agency's investigation took months
to complete and resulted in complainant's removal from her usual work
site for an approximately eight week period. The Commission notes that
while the Supervisor was disciplined as a result of his misconduct in this
matter, his demotion to a non-supervisory position lasted less than two
months, after which he became a supervisor again. Furthermore, there
was no evidence of a strong anti-harassment policy that was uniformly
enforced throughout the facility, and there appeared to be no clearly
defined and effective complaint process for employees with allegations
of harassment. Even if those had existed, the evidence shows that
management had a history of ignoring a clear pattern of misconduct by
these same employees and Supervisor. There is also evidence of breaches
in the confidentiality of the complaint system, as well as retaliation,
as both the Supervisor and other employees made harassing comments to
and about complainant concerning her complaints about the discriminatory
atmosphere at the facility. In light of all these factors, the Commission
finds that complainant has proven, by a preponderance of the evidence,
that she was subjected to discriminatory harassment because of her sex
and disability.
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to REVERSE the agency's final decision which concluded
that there was insufficient proof that complainant had been subjected
to unlawful harassment because of her sex and disability. In order to
remedy complainant for its discriminatory actions, the Commission orders
the agency to comply with the following Order.
ORDER
The agency is ORDERED to take the following remedial action:
(A) The issues of compensatory damages and attorney's fees and costs
are REMANDED to the Hearings Unit of the Milwaukee District office.
Thereafter, the Administrative Judge shall issue a decision on these
issues in accordance with 64 Fed. Reg. 37,644, 37,657 (1999) (to be
codified at 29 C.F.R. � 1614.109), and the agency shall issue a final
action in accordance with 64 Fed. Reg. 37,644, 37,657-58 (1999) (to be
codified at 29 C.F.R. � 1614.110) within forty (40) days of receipt of
the Administrative Judge's decision. The agency shall submit copies
of the Administrative Judge's decision and the final agency action to
the Compliance Officer at the address set forth below.
(B) The agency shall provide immediate training to the officials
responsible for its actions in this matter regarding their obligations
and responsibilities under Title VII and the Rehabilitation Act.
(C) The agency shall immediately issue a strong written policy to
all employees of the New Berlin, Wisconsin, Post Office prohibiting
discriminatory harassment and shall establish a clearly defined
and effective complaint process for employees with allegations of
harassment.<8> The new anti-harassment policy shall be uniformly
enforced throughout the facility. All New Berlin employees shall also
receive prompt EEO sensitivity training, which includes reference to
the agency's anti-harassment policy.
(D) The agency shall post at the New Berlin, Wisconsin, Post Office
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 set forth below
within ten (10) calendar days of the expiration of the posting period.
(E) 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).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (R1199)
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:
April 6, 2000
_______________ _____________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
1 On 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.
2 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: WWW.EEOC.GOV.
3 The Manager denied rolling his eyes but conceded that complainant
had complained before about being harassed by her coworkers. He said
that in November 1993 he offered to transfer her to another facility,
but she declined his offer.
4 This individual directly supervised complainant from 1991-1993.
He said he was asked by complainant, on several occasions during this
period, to speak with her coworkers about their harassment of her.
5 Although the record is somewhat unclear, it appears that the
Supervisor accused of threatening complainant did not return to the New
Berlin facility at this time. In a deposition, he testified that he was
demoted to a postal clerk position in May 1994 for conduct unbecoming
a postal supervisor but was re-promoted to the position of Customer
Service Supervisor in July 1994, apparently in settlement of a grievance.
During the time the Supervisor was demoted, he received mandatory EEO
training from the agency.
6 It is not altogether clear from the record whether the Supervisor in
this matter was in complainant's chain of command for the entire period
at issue. However, because he was her supervisor for several years,
complainant may have reasonably believed that he had authority over
her and/or the ability to significantly influence employment decisions
affecting her. Therefore, the standard of liability for a supervisor
should apply in this case. See EEOC's Guidance on Vicarious Liability
for Harassment at 7.
7 Harassment that is targeted at an individual because of his or her
gender violates Title VII even if it does not involve sexual comments
or conduct. Thus, for example, frequent derogatory remarks about women
could constitute unlawful harassment even if the remarks are not sexual
in nature. See EEOC's Guidance on Vicarious Liability for Harassment,
footnote 11.
8 See EEOC's Guidance on Vicarious Liability for Harassment.