Geraldine Pokladowski, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 27, 2000
01995446 (E.E.O.C. Jul. 27, 2000)

01995446

07-27-2000

Geraldine Pokladowski, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Geraldine Pokladowski v. United States Postal Service

01995446

July 27, 2000

Geraldine Pokladowski, )

Complainant, )

)

v. ) Appeal No. 01995446

) Agency No. 4B-060-0177-97

William J. Henderson, ) Hearing No. 160-99-8361X

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________________)

DECISION

INTRODUCTION

Complainant timely initiated an appeal to the Equal Employment Opportunity

Commission (EEOC) from the final agency decision concerning her equal

employment opportunity (EEO) complaint, which alleged 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 by the Commission in

accordance with the provisions of 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified at 29 C.F.R. � 1614.405).<1>

ISSUE PRESENTED

The issue presented is whether the agency adequately responded to an

incident of alleged sexual harassment.

BACKGROUND

In a complaint dated May 1, 1997, complainant, then a Distribution/Window

Clerk, PS-5, alleged that the agency discriminated against her based

on sex (female) when she was sexually harassed by a coworker; to wit,

that a male coworker exposed his genitals to her. The agency conducted

an investigation, provided complainant with a copy of the investigative

report, and advised complainant of her right to request either a hearing

before an EEOC administrative judge (AJ) or an immediate final agency

decision (FAD). Complainant requested a hearing.

Subsequently, the agency filed a motion arguing that there existed

no genuine issue of material fact to be resolved, and requesting that

the AJ issue findings and conclusions without a hearing. According to

the AJ, complainant, through counsel, replied to the agency's motion.

The record, however, contains no copy of such reply, and the agency

denies having been served with a copy.

The AJ determined that the case was appropriate for disposition without

a hearing, and issued a recommended decision<2> (RD) finding that

complainant had been sexually harassed by a male coworker.<3> The

AJ further determined that the agency's response to the harassment

was inadequate because the agency did not take steps to ensure that

complainant and the harasser would never work together again, i.e.,

did not transfer the harasser away from complainant.

On May 21, 1999, the agency rejected the finding in the RD and issued

a FAD finding no discrimination. The agency noted that it was not

appropriate for the AJ to have issued a decision without a hearing where

the AJ did not believe that the agency, as the moving party, was entitled

to judgment in its favor as a matter of law. The agency further argued

that its response to the incident at issue had been adequate, as evidence

by the fact that there had been no recurrence of the objectionable

conduct. It is from this decision that complainant now appeals.

ANALYSIS AND FINDINGS

It is well-settled that sexual harassment in the workplace constitutes an

actionable form of sex discrimination under Title VII. Meritor Savings

Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim

of sexual harassment, complainant must show that: (1) she belongs to a

statutorily protected class; (2) she was subjected to unwelcome conduct

related to her gender, including sexual advances, requests for favors, or

other verbal or physical conduct of a sexual nature; (3) the harassment

complained of was based on sex<4>; (4) 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 (5)

there is a basis for imputing liability to the employer; in other words,

did the agency know or have reason to know of the sexual harassment and

fail to take prompt remedial action. See Henson v. City of Dundee, 682

F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated

from the objective viewpoint of a reasonable person in the victim's

circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc.,

EEOC Notice No. 915.002 (March 8, 1994).

The AJ, pursuant to a motion for summary judgment, issued factual findings

from which he concluded that complainant had established a prima facie

case of sexual harassment. The Commission finds no basis to disturb the

AJ's factual findings. However, the Commission finds that the AJ erred as

a matter of law in holding the agency liable for the sexual harassment.

In order to avoid liability for hostile work environment sexual harassment

engendered by a coworker, the agency must show: (1) that the conduct

complained of did not occur; (2) that the conduct complained of was

not �unwelcome�; (3) that the alleged harassment was not �sufficiently

severe or pervasive� to alter the conditions of the victim's employment;

(4) immediate and appropriate corrective action was taken as soon as

the agency was put on notice; or (5) there is no basis for imputing

liability under agency principles. E.g., Gierut v. U.S. Postal Service,

EEOC Appeal No. 01933461 (August 25, 1994); Bouchell v. U.S. Postal

Service, EEOC Appeal No. 01932122 (June 23, 1994).

In this case, the Commission finds that the agency took �immediate and

appropriate corrective action� as soon as complainant gave notice of

the incident shortly after its occurrence. The record reflects that the

agency immediately investigated the incident; did not require complainant

to work with the coworker in the meantime; suspended the coworker for

14 days; required the coworker to read and sign a copy of the agency's

policy on sexual harassment, which was already posted in the workplace;

gave a service talk and showed a videotape regarding sexual harassment

to all employees; posted a sign specifically instructing employees to

shut the bathroom door; and gave complainant assurances that any time she

might be assigned to work in proximity to the coworker, a supervisor would

be present. The record reflects that, as of the filing of the appeal,

there has been no recurrence of the alleged sexual harassment, nor has

complainant been subjected to any retaliation for reporting the incident.

Accordingly, the actions taken by the agency are sufficient to relieve

it of liability.

The Commission notes that the AJ found the agency liable because it

did not take steps to ensure that complainant would never be assigned

to a common workplace with the coworker again. The cases cited by

the AJ in support of that conclusion, Guerra v. U.S. Postal Service,

EEOC Appeal No. 01965639 (June 19, 1997), and Rodriguez v. Dept. of

Veterans Affairs, EEOC Appeal No. 01953850 (August 29, 1996), are

cases where the harassment was on-going, and the initial steps taken

by the agencies were not adequate to end the harassment or prevent its

recurrence. The Commission does not require that an agency reassign a

harasser in all cases in order to avoid liability. See Tom v. Dept. of

Health and Human Services, EEOC Appeal No. 01966875 (October 1, 1998)

(appropriate relief may include taking steps to ensure that the harasser

and the complainant are not assigned to a common workplace). Further,

the Commission has held that what constitutes prompt corrective action

depends on the facts of the case, that is, the severity and persistence

of the harassment and the effectiveness of the initial remedial steps.

Barlow v. Dept. of the Navy, EEOC Appeal No. 01971585 (June 11, 1998).

Under the facts of this case, the agency's actions were sufficient to

promptly end the harassment and prevent any recurrence or retaliation.

Therefore, it was an error of law for the AJ to find the agency liable

for sexual harassment in this case.<5>

CONCLUSION

Based upon a thorough review of the record, and for the foregoing reasons,

it is the decision of the Equal Employment Opportunity Commission to

AFFIRM the final agency decision.

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

You have the right to file a civil action in an appropriate United States

District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you

receive this decision. If you file a civil action, YOU MUST NAME AS

THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD

OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND

OFFICIAL TITLE. Failure to do so may result in the dismissal of your

case in court. �Agency� or �department� means the national organization,

and not the local office, facility or department in which you work. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

(�Right to File a Civil Action�).

FOR THE COMMISSION:

July 27, 2000

DATE Frances M. Hart

Executive Officer

Executive Secretariat

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 in effect at the time, the agency could accept,

reject, or modify the decision of the AJ. Under the Commission's revised

regulations, however, the decision of the AJ is binding on both parties,

subject to the right of appeal to the Commission. 64 Fed. Reg. 37, 644,

37,657 (to be codified at 29 C.F.R. � 1614.110(a)).

3The conduct complained of consisted of a single incident in which a

male coworker exposed his genitals to complainant under the following

circumstances: The facility where the incident occurred has one unisex

bathroom at the end of a hallway, from which an individual using the

bathroom can see the sales counter if the bathroom door is left open.

According to the coworker, he left the bathroom door ajar in order to

keep watch on his cash drawer, which he had not locked. The coworker

stated that when complainant, whom he had believed to be out of the

building on her lunch break, appeared in the hallway, he apologized and

shut the door. According to complainant, however, when the coworker

saw her he made no effort to shut the door or otherwise conceal himself,

and smiled or smirked at her.

4In addition to considering conduct that is explicitly sexual in nature,

the Commission will consider other conduct or comments which are related

to a complainant's gender.

5Although under the facts of this case reassigning the coworker was

not required for the agency to avoid liability, the agency's argument

that it could not have reassigned the coworker in any event because he

held a bid position is without merit. As the Commission has previously

reminded the agency, restrictions placed on the agency's operations by

its collective bargaining agreement do not, of necessity, relieve the

agency of its obligations under the statutes enforced by the Commission,

Jones v. U.S. Postal Service, EEOC Request No. 05970828 (September 24,

1998), and therefore would not have excused the agency from reassigning

the coworker had such action been warranted in this case.