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.