01965238
10-16-1998
Frantaga C. Humphrey, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Frantaga C. Humphrey v. United States Postal Service
01965238
October 16, 1998
Frantaga C. Humphrey, )
Appellant, )
)
v. ) Appeal No. 01965238
) Agency No. 1G771120794
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
___________________________________)
DECISION
INTRODUCTION
On July 2, 1996, Frantaga C. Humphrey (hereinafter referred to as the
appellant) timely filed an appeal with the Equal Employment Opportunity
Commission (EEOC) from the agency's final decision on her EEO complaint in
which she alleged unlawful discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq. The appeal
is accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether appellant has proven by a preponderance
of the evidence that she was subjected to sexual harassment during her
driving test on July 19, 1994.
BACKGROUND
Appellant filed an EEO complaint alleging sexual harassment by the
driving instructor.<1> The agency accepted the complaint and conducted
an investigation. Following a hearing, an EEOC Administrative Judge
(AJ) issued a recommended decision (RD) finding discrimination. In
its final decision (FAD), the agency rejected the RD and found no
discrimination. Appellant now appeals from the FAD.
Appellant worked as a casual employee at the agency's facility in Houston,
Texas in the fall of 1993. Her period of employment ended prior to January
1, 1994. Thereafter, appellant was asked to return for further training,
which consisted of classroom and driving instruction and testing in the
use of agency vehicles.
Appellant was scheduled for driving instruction and testing at 11:00
a.m. on July 19, 1994. Appellant arrived several hours early to bring a
co-worker, another trainee who had no other means of transportation, for
instruction and testing scheduled for 7:00 a.m. Because she planned to
drop off her co-worker and return later, appellant was wearing shorts, a
t-shirt, and thongs. Appellant and the co-worker parked in the front lot.
When the Driving Instructor noticed them, he went out and told them to
park in the back lot.
One of the trainees who also was scheduled at 7:00 a.m. called to advise
that she was unable to arrive at that time. The Driving Instructor
informed appellant that she could stay for instruction and testing
at 7:00 a.m. rather than returning later. Appellant agreed to do so.
After filling out paperwork in the building, appellant and the co-worker
accompanied the Driving Instructor and another instructor (Instructor 2)
to the driving area.
Prior to driving the vehicles, the instructors demonstrated how to
inspect the vehicles and use the mirrors. Driving instruction and
testing followed three phases: 1) The instructor drove the course while
the trainee observed from the passenger seat; 2) the trainee drove
the course with the instructor sitting in the passenger seat; and, 3)
the trainee drove the vehicle alone while the instructor observed from
outside the vehicle.
The harassment occurred during phase 1. Appellant testified that the
Driving Instructor told her to come with him to one of the vehicles
and told the co-worker to go with Instructor 2. While he was driving,
appellant said that he started asking about what she was doing with "them
big old hairy legs." She said that he touched her thigh, pulled her
shorts back and said "look at all that hair." He pointed to her "private
parts" and made a comment about the amount of hair in that area. (HT 47,
89, 92). The Driving Instructor unbuckled appellant's seat belt and
told her to stand up and lean over him to look in the outside mirror on
his side of the vehicle as he was backing up.<2> Because appellant had
nothing to lean on, he told her to put her arm and hand on his leg and
apparently indicated an area near his "private parts." He told her to
look at the cone, observe how he was backing up, and to do the same thing
when she drove the vehicle. Appellant said that as she stood back up,
he "touched, he pinched" her breast. (HT 92). Appellant testified that
she felt "very uncomfortable and nervous, [and] intimidated, because he
was hollering at me, and he was touching and talking all dirty and nasty
to me," and that nothing like this ever had happened to her before.
Appellant stated that she had trouble driving the vehicle because she
was shaking and trembling and scared. She said that she did not know
what to think or how to react because he was the trainer, so she just
attempted to take the test.
On cross-examination, when asked why she did not stop the vehicle and
get out, appellant said that she was in shock because she had never been
treated that way and did not know how to respond. Although no one else
was in the vehicle, appellant testified that the co-worker and Instructor
2 could see her standing up and bending over the Driving Instructor.
Appellant said that she told the co-worker what had happened after the
test was over and they went back into the building.
Upon completion of the test, the Driving Instructor had given appellant a
sealed envelope and told her to go to a particular individual's office.
Appellant and the co-worker drove to the office but the individual
was not there so the Human Relations (HR) Specialist took the envelope.
When she began to tell the HR Specialist what had occurred, he stopped her
and consulted with another agency official who said that appellant had to
provide a written statement. After appellant did so, she went home and
called the police. Appellant filed sexual assault charges against the
Driving Instructor the next day. On August 11, 1994, appellant consulted
a clinical psychologist about the incident.
The psychologist testified that he treated appellant for more than a
year for severe anxiety and depression as a result of the incident.
The psychologist recounted the incident as related to him by appellant,
and mentioned in his testimony that the Driving Instructor had been
aroused. (HT 15). He said that his interpretation of appellant's reaction
during the incident, i.e., extreme nervousness and shaking, was that
she had a panic attack because she was so frightened. The psychologist
said that he believed what appellant had told him based on the fact
that she reported the incident soon after it happened; the symptoms and
experiences she described were very consistent with those of other people
he had worked with who also had been exposed to various types of trauma;
and, her demeanor in his office when discussing the incident, e.g.,
tearfulness, tremulousness, shaking, and so on, would have required her to
be a "very good actress" to mimic those symptoms. He said that appellant
further experienced various physical symptoms for which she had sought
medical treatment. In his opinion, her symptoms were inconsistent with
merely losing her job because she failed the training. The psychologist
said he believed that appellant did not tell the Driving Instructor to
leave her alone because she had a panic attack, i.e., she "froze up."
In her August 24, 1994 statement, appellant's co-worker said that
"[t]he only thing that I seen was [appellant] standing over [the Driving
Instructor] in the LLV and I made a comment why is she standing over
him." She said that Instructor 2 did not respond to her statement.
The co-worker said that she did not hear anything that was said in the
other vehicle and she did not see any touching. The co-worker stated
that appellant told her everything in the car on the way downtown to the
Annex Building. The co-worker indicated that she thought the Driving
Instructor seemed "like a real nice guy," that she did not know whether
the incident was "real or not real." Appellant testified that when the
co-worker gave her statement, the co-worker was afraid of losing her
job.<3>
Instructor 2 testified that he was training appellant's co-worker at
the same time that appellant was being trained and was not looking at
appellant's vehicle because he was paying attention to what he was doing.
Instructor 2 said that it was not normal procedure to ask a person to
take off a seat belt while the vehicle was moving. He did say that
the instructors routinely asked trainees to lean over (but not over
the instructor) to look in the outside mirror so they could observe
what the instructor was doing. He could not remember a conversation
with the co-worker about why appellant might be standing in the LLV,
although he stated "She may have said that but I don't remember that."
(HT 124). He also admitted that he was a friend of the Driving Instructor
and would not want to say anything to hurt his career.
The HR Specialist testified that appellant came to the office and asked
for an individual who was not there. When she indicated that she had
failed the driving test, he told her that he could talk to her. He took
the envelope and found that the contents stated that she had failed.
The HR Specialist talked with her about what would occur next. When he
finished, appellant turned toward the co-worker and asked who she should
tell the rest of her story to. The HR Specialist asked her what she
was talking about and appellant proceeded to explain that the Driving
Instructor had made her very nervous so that she could not drive. When he
asked for further elaboration, she started crying and told him that the
Driving Instructor had touched her inappropriately. On cross-examination,
the HR Specialist indicated that appellant was very nervous during their
conversation but did not start to cry until she related the incident
to him. The HR Specialist stopped her and got his immediate supervisor.
Appellant spoke with the HR Specialist's immediate supervisor--the Senior
Training Specialist--privately.
In her affidavit,<4> the Senior Training Specialist--the HR Specialist's
immediate supervisor--said that appellant did not mention the incident
until after she learned she would be removed from the agency's rolls. The
Senior Training Specialist said that after investigating her allegations,
appellant was sent a letter of removal.
In his November 1994 affidavit, the Driving Instructor explained that he
had trained appellant and that his only conversation with her concerned
the operation of the vehicle and her inquiry as to whether he had any
influence on her becoming a clerk. Without mentioning any specifics,
he simply stated that "at no time did [he] touch or talk to her in an
inappropriate manner."
In response to appellant's OWCP claim, he provided a more detailed
statement in May 1995. Therein, he said--inter alia--that on the day
of scheduling, appellant had asked to see a picture of his wife, which
he thought was inappropriate, and also had asked whether she could get
a clerk's position. On the day of the incident, the Driving Instructor
said that appellant "turned and ran toward my vehicle an[d] jumped in
on the passenger side." He stated that "I did not notice what she was
wearing because I stayed at a distance because she smelled of a foweled
[sic] odor and bad breath." The Driving Instructor said that he had to
ask appellant to keep both hands on the steering wheel because she was
scratching some type of rash under her chin. According to the Driving
Instructor, appellant said that she "itched all over because she did
not shave her legs or her whole body anymore." He said that she then
asked again about a clerk's position.
At the hearing, the Driving Instructor denied making any of the
remarks or engaging in any of the actions complained of by appellant.
He also denied unbuckling her seat belt or telling her to stand up.
On cross-examination, the Driving Instructor said that during classroom
instruction, appellant had asked to see a picture of his wife and
children. Appellant's counsel asked a series of questions as to whether
the Driving Instructor noticed what appellant was wearing. He denied
several times that he noticed she was wearing thongs. He also said
that he thought she had worn a short-sleeved shirt but that was the
extent of what he had noticed, i.e., it was not his habit to notice what
someone was wearing. When asked about his conversation with appellant
on July 19, 1994, the Driving Instructor said that primarily it focused
on how to operate the vehicle safely. The only other conversation
he remembered was appellant's statement about how she used to shave
all over, including her face, but that she did not do so anymore.
When asked when he noticed that appellant had bad breath, he said she
also had body odor and that he opened the window as soon as he got into
the vehicle. When asked whether he noticed a rash on appellant's chin,
he said "there was some little fine hairs and some bumps right there."
He denied seeing a rash anywhere else on her.
Appellant denied that she ever had a rash on her chin or that she
had commented to the Driving Instructor about how she had stopped
shaving. Appellant also denied ever asking the Driving Instructor to see a
picture of his wife. Appellant agreed that she had told the psychologist
that the Driving Instructor was aroused but could not recall whether
she had included that information in her written statements or in her
testimony before the Office of Workers' Compensation Programs (OWCP).
In the RD, the AJ found sexual harassment discrimination. The AJ found
that appellant was subjected to unwelcome sexual comments and touching by
the Driving Instructor during her driving test and that the combination
of remarks and physical contact was sufficient to create a hostile
work environment. In this regard, the AJ found appellant's testimony
to be more credible than that of the Driving Instructor. Because the
agency produced no evidence to show that it had taken immediate and
appropriate corrective action, the AJ recommended a finding of sexual
harassment discrimination with appropriate remedial action, i.e.,
appellant should be permitted to retake the driving test and, if she
passed, should receive appropriate back pay and benefits. The AJ also
awarded appellant attorney's fees and directed the agency to conduct an
investigation regarding her compensatory damages claim.
In the FAD, the agency rejected the RD. The agency found that appellant
failed to show by a preponderance of the evidence that the conduct at
issue had occurred. The agency found that the co-worker's affidavit did
not support appellant's allegations. The agency further found the driving
instructor's categorical denials to be credible because there had been
no previous complaints about his behavior and because of the consistency
of his witness statements. The agency also found that appellant had
taken no action to stop the alleged harassment and reported it only
when she realized that she had failed the driving test. The agency
concluded that other than her own self-serving testimony, appellant
had presented no evidence to support her allegations. Consequently,
the agency declined to defer to the AJ's credibility determination.
On appeal, appellant contends that "the credible evidence of
record indicates that [she] is telling the truth about this sexual
harassment...by her driving instructor...." Appellant also provides
evidence acquired after the hearing showing that other trainees had
complained about the Driving Instructor.
ANALYSIS AND FINDINGS
The issue on appeal is whether appellant has proven by a preponderance of
the evidence that she was subjected to sexual harassment by the Driving
Instructor.
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, 1138-1139 (D.C. Cir. 1985). A single incident or group
of isolated incidents will not be regarded as discriminatory harassment
unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355,
1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to
trigger a violation of Title VII must be determined by looking at all the
circumstances, including the frequency of the discriminatory conduct,
its severity, whether it is physically threatening or humiliating, or
a mere offensive utterance, and whether it unreasonably interferes with
an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17
(1993).
The U.S. Supreme Court has held that a violation of Title VII may be
predicated on either of two types of sexual harassment: (a) harassment
that conditions concrete employment benefits on sexual favors ("quid pro
quo" sexual harassment); and (b) harassment that, while not directly
affecting economic benefits, creates a hostile or offensive working
environment. Meritor Savings Bank v. Vinson, 477 U.S. 57, 62-67 (1986).
In this case, appellant is alleging the latter type of harassment.
To establish a prima facie case of hostile environment sexual harassment,
a complainant must show that: (1) she belongs to a statutorily protected
class; (2) she was subjected to sexual harassment in the form of unwelcome
sexual advances, requests for sexual favors, or other verbal or physical
conduct of a sexual nature; (3) the harassment complained of was based on
sex; 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
work environment. Henson v. City of Dundee, 682 F.2d 897, 903-05 (11th
Cir. 1982); 29 C.F.R. �1604.11. Evidence of the general work atmosphere,
involving employees other than the complainant, also is relevant to the
issue of whether a hostile environment existed in violation of Title
VII. Vinson v. Taylor, 753 F.2d 141, 146 (D.C. Cir. 1985), aff'd in
relevant part and rev'd in part, Meritor Savings Bank v. Vinson, 477
U.S. 57 (1986); Delgado v. Lehman, 665 F. Supp. 460, 468 (E.D. Va. 1987).
To avoid liability for hostile environment sexual harassment, an agency
must show that: 1) the acts/conduct complained of did not occur; 2)
the conduct complained of was not unwelcome; 3) the alleged harassment
was not sufficiently severe or pervasive to alter the conditions of
the victim's employment and create an abusive working environment; 4)
immediate and appropriate corrective action was taken as soon as the
employer was put on notice; and/or 5) there is no basis for imputing
liability to the employer under agency principles. See Vinson, supra.
The Commission finds that appellant belongs to a statutorily protected
group. The Commission also finds that appellant was subjected to
remarks and touching of a sexual nature by the Driving Instructor under
circumstances which would determine whether appellant could continue
her employment with the agency. The Commission finds that appellant's
version of the facts was more credible than the Driving Instructor's
denials and that the weight of the evidence tends to support her
version of the facts. To the extent that the AJ made her credibility
determinations based on the demeanor of the witnesses during hearing,
the Commission defers to the AJ's findings because the evidence is
insufficient to support a contrary assessment. See Universal Camera
Corp. v. Nat'l Labor Relations Board, 340 U.S. 474 (1951).
In crediting appellant's version of the facts, the Commission relied on
the following evidence. Appellant told the co-worker of the incident
immediately after it occurred; she reported it to agency officials shortly
thereafter; and, she filed a sexual assault charge with the police the
next day. The co-worker corroborated appellant's testimony that the
Driving Instructor had her stand and lean over him in the vehicle.
The HR Specialist observed that appellant was "nervous" and that
she started to cry when describing the incident which coincided with
appellant's testimony that she was "scared" and "shaking" as a result of
the harassment. Further, the psychologist who appellant consulted with
because of the harassment said that appellant's symptoms were consistent
with those of other individuals who also had experienced some type
of trauma and that such symptoms would have been difficult to mimic.
Finally, we note that on appeal, appellant submitted the affidavit of a
union steward to show that three other female trainees also had complained
about the Driving Instructor's conduct: one complained that he had asked
her if she was pregnant; another complained that he had told her that
he loved a woman who smelled good; and a third complained that he had
stared at her legs during the entire training and testing.<5>
The Commission also finds that the Driving Instructor's conduct was
unwelcome. Nothing in the record suggested that appellant invited or
encouraged the Driving Instructor's behavior and the evidence shows
that she was greatly distressed as a result of the incident. Although
appellant did not tell the Driving Instructor to stop the harassment,
she testified that she was in a state of shock and did not know what
she should do or say because nothing like this ever had happened to
her before. Her psychologist explained that she appeared to have had a
"panic attack" and had been unable to respond. The Commission finds
appellant's reasons for her inaction to be very credible.
Based on the foregoing, the Commission finds that appellant was
subjected to sexual harassment by the Driving Instructor in the form of
unwelcome remarks and touching of a sexual nature which had the effect
of unreasonably interfering with her work environment. The Commission
further finds that agency failed to present any evidence to show that
it took immediate and appropriate corrective action upon learning
of harassment. Consequently, the agency is liable for the hostile
environment sexual harassment.
CONCLUSION
Having reviewed the record in its entirety, the Commission REVERSES the
agency's final decision.
ORDER
The agency is ORDERED to take the following remedial action:
1) The agency must offer appellant the opportunity to retake the driving
test with a different driving instructor. To this end, the agency must
notify appellant of same within fifteen (15) days of the date on which
this decision becomes final. If appellant passes the test, the agency
shall place appellant in the position she would have received had she
passed the test on July 19, 1994. In the event that appellant passes
the driving test, the agency also shall determine the appropriate amount
of back pay with interest and other benefits due appellant, pursuant
to 29 C.F.R. �1614.501, no later than sixty (60) calendar days after
the date this decision becomes final. The agency shall use July 19,
1994, the date on which appellant took first took the driving test,
for purposes of seniority and computation of back pay and benefits.
The appellant 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 appellant for the undisputed amount within sixty (60)
calendar days of the date the agency determines the amount it believes
to be due. The appellant 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."
2) The agency shall provide EEO training to the Driving Instructor and
other agency officials involved in this case.
3) The agency is ORDERED to conduct a supplemental investigation regarding
appellant's compensatory damages claim.<6>
4) 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 appellant,
including evidence that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
ATTORNEY'S FEES (H1092)
If appellant 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.
POSTING ORDER (G1092)
The agency is ORDERED to post at its facility in Houston, Texas 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
Oct. 16, 1998
DATE Frances M. Hart
Executive Officer
Executive Secretariat
1Appellant was 22 or 23 years old at the time of the alleged incident.
2The harassment apparently occurred in the long life vehicle (LLV) in
which there was a space of about two and a half feet between the seats.
3The co-worker did not testify at the hearing because she no longer
worked for the agency.
4The immediate supervisor did not testify because she was ill on the
day of the hearing.
5The Union Steward testified that after she reported these complaints
to the Senior Training Specialist, the Driving Instructor no longer was
permitted to work with female trainees.
6In Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5,
1993), the Commission described the type of objective evidence that an
agency may obtain when assessing the merits of a complainant's request
for emotional distress damages:
[E]vidence should have taken the form of a statement by appellant
describing her emotional distress, and statements from witnesses, both
on and off the job, describing the distress. To properly explain the
emotional distress, such statements should include detailed information
on physical or behavioral manifestations of the distress, information on
the duration of the distress, and examples of how the distress affected
appellant day to day, both on and off the job. In addition, the agency
should have asked appellant to provide objective and other evidence
linking . . . the distress to the unlawful discrimination . . . .