01971882
03-16-2000
Juliana Hackman, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Midwestern), Agency.
Juliana Hackman v. United States Postal Service
01971882
March 16, 2000
Juliana Hackman, )
Complainant, )
) Appeal No. 01971882
v. ) Agency No. 4J-604-1194-95
) Hearing No. 210-95-6013X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Great Lakes/Midwestern), )
Agency. )
)
DECISION
Complainant filed a timely appeal with this Commission challenging the
final agency decision (FAD) of the United States Postal Service (agency)
concerning her complaint of 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 64 Fed. Reg. 37,644, 37, 659 (1999)
(to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue on appeal is whether the agency discriminated against
complainant on the basis of sex (female)<1> when it allegedly subjected
her to sexual harassment by creating a hostile working environment.
BACKGROUND
Following an EEOC administrative hearing held on April 23 and 24, 1996,
the administrative judge (AJ) issued a recommended decision finding
discrimination with respect to complainant's allegation as stated above
under "Issue Presented." However, the AJ recommended a finding of no
discrimination with respect to complainant's allegation that she was
harassed in retaliation for engaging in EEO protected activity.
In support of her finding of discrimination, the AJ evaluated both
complainant's testimony and the agency's witnesses' testimony regarding
various incidents of alleged sexual harassment. Complainant testified that
she began her employment with the agency on June 7, 1986, at the agency's
Cook Street facility, in Springfield Illinois. During the fall of 1992
complainant was transferred to the agency's Downtown Station facility.
Complainant testified that at the Downtown Station facility she was
subjected to sexually harassing language and conduct. Specifically,
complainant testified that several of her co-workers continually
engaged in sexually explicit language and conduct in her presence.
Complainant specifically identified five carriers as the main culprits
of the harassing conduct and testified that they harassed her on a daily
basis for the past four years (1992-1996). She further testified that
the carriers used sexual innuendos when discussing mail processing
on the work room floor. For instance, complainant stated, "Once the
mail was up, they would talk about jerking it down. Yanking it down.
Whipping it out. And likewise maybe getting some help to do that...They
described rubber bands, with the connotation that they were condoms...If
the clerks were distributing mail and there was a lot of mail that day
someone would make the comment, bend over. Prepare for a ram."
Also, complainant testified that the carriers displayed pornographic
pictures in the work area. Complainant stated, that pornographic
pictures were posted in the work areas in the collection section and in
the carrier's section. She further stated that at one point in December
1992, there were plastic or rubber life-size women's breasts attached
to the outside of one of the carrier's lockers. Complainant testified
that the breasts remained on the locker for several days before they were
removed and that they were within view of the supervisors' work areas.
Complainant further testified regarding more egregious pornographic
paraphernalia such as the posting of an 8 x 11 xeroxed picture of an
obese woman with a dog in her anal opening and a joke written under the
picture. Also on October 1, 1993, in celebration of a female carrier's
29th birthday, the male carriers gave the female carrier a spanking.
During November 1995, the carriers passed around a Playboy magazine, and
other pin-up pictures from other magazines. Complainant testified that
some of the carriers would take the "waste mail" (undeliverable mail) of
a sexual nature, and pull out the sexually explicit advertisements and
any other catalogues that were sexually oriented and create a "stash"
of this material for later use. Complainant stated that this material
would appear on the break room table or would be posted on the office
bulletin board. Also regarding this material, complainant testified
that employees would frequently pass one another the sexually explicit
advertisements and make sexual comments. "They would pass the picture
around and they would [talk] about getting erections. One would yell,
�I have got one.' Then another one. They would talk about getting
the pictures sticky. Getting their hands sticky. Getting it all over
the picture. Yanking on it. Jerking on it."
Complainant testified that often the five carriers discussed women in
sexual terms. For instance, she stated that they would discuss women's
breast sizes and physical appearance. Complainant testified that she was
assigned a case next to a male CW's case. She stated that the male CW
would constantly attach sexual connotations to any type of conversation.
For example, on one occasion the male CW made the comment that he
was going to rape counseling to learn new sexual assault techniques.
Complainant further testified that the male CW talked about "blow
jobs" often, getting chapped lips from getting "blow jobs," something
being faster than a speeding "blow job," women who give good h--d, and
Wh---s." Complainant stated that she frequently heard the male CW make
these types of comments until his transfer to the Cook Street facility
in August 1994. Finally, complainant testified that on one occasion
several of the carriers were engaged in a discussion involving anal sex.
She testified that "....they were discussing which kind of women like
anal sex." Complainant testified that the sexually explicit conversations
were continuous and too numerous to recall them all.
Complainant further provided that following her complaints about her
co-workers' offensive conduct, on March 16, 1993, management held a
training session on sexual harassment. She testified that the Postmaster
told her although he did not feel she was being sexually harassed, he
would speak with the carriers. Complainant admitted that after the
meeting the carriers' language improved for one or two months, but,
thereafter, continued. From late summer or early fall 1993, through
February 1995, complainant had a female supervisor. She testified that
she spoke with her supervisor on at least three occasions about the sexual
language used by the carriers and their conduct. The supervisor responded
by telling complainant that the carrier's language and conduct should
not bother her and advised complainant to "let it roll off your back."
Complainant also stated that management suggested she wear a headset to
"drown out the voices of the other carriers" or carry a tape recorder
to record some of the sexually explicit conversations.
Based on the foregoing and additional evidence presented at the hearing,
the AJ concluded that complainant had established that she was subjected
to unwelcome verbal conduct of a sexual nature. Additionally, the AJ
found that the acts complainant complained of were serious, continuous,
and pervasive and had the purpose or effect of unreasonably interfering
with the work environment and/or creating an intimidating, hostile,
or offensive work environment.
In a FAD dated November 21, 1996, the agency adopted the AJ's finding
of no reprisal discrimination but rejected the AJ's finding of sexual
harassment discrimination. We note that the agency's contentions in
its FAD were the same as its arguments made during the hearing on this
matter. The agency contends that the acts and language complained of by
complainant were devoid of sexual connotations and merely misinterpreted
by complainant. Additionally, the agency contends that the language and
acts complained of did not rise to the level of a hostile environment
because none of the conversation or acts were specifically directed
at complainant.
ANALYSIS AND FINDINGS
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). A finding regarding whether or not
discriminatory intent existed is a factual finding. See Pullman-Standard
Co. v. Swint, 456 U.S. 273, 293 (1982).
After a careful review of the record, including the AJ's recommended
decision, the FAD, complainant's statement on appeal, the hearing
transcript, and evidence not specifically addressed in this decision,
we find that the AJ set forth the relevant facts and properly analyzed
the appropriate legal authority, regarding hostile environment
sexual harassment, applicable to this case. The Commission finds the
AJ's findings of fact to be supported by substantial evidence. As we
further discern no legal basis to disturb the AJ's recommended decision,
we adopt that decision as our own.
As an additional note, with regard to the agency's contentions that
complainant failed to offer specific example of harassing conduct, we
find, as did the AJ, that our review of complainant's testimony at the
hearing as describe above showed otherwise. Additionally, we note that
similar to this case in Torres v. Pisano, 116 F.3d 625, (2d Circuit.),
cert. denied, 118 S.Ct. 563 (1997), the court held that plaintiff's
allegations of harassment were sufficient to survive summary judgment
where she provided specific examples of harassing conduct and stated
that she had "lost count" of the other numerous instances of harassment.
Also, with respect to the agency's argument that the offensive language
and conduct was not directed at complainant, we note that the Commission
has held that it is sufficient if the complainant demonstrates that the
environment is offensive. See McGinnis v. Secretary of Defense, EEOC
Appeal No. 01902760 (1990). We find that complainant has adequately
demonstrated that the environment she worked in was offensive and that
the offensive conduct was pervasive in that it occurred on a daily basis
in some instances and during a period of approximately four years.
In accordance with these findings, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM in part, and REVERSE in part,
the FAD's ultimate finding of no discrimination and REMAND this case
for further processing consistent with this decision and ORDER below.
ORDER
The agency is ORDERED to take the following remedial actions:
1. The issues of compensatory damages and attorney's fees and costs are
REMANDED to the Hearings Unit of the appropriate EEOC field office.
Thereafter, the administrative judge shall issue a decision on these
issues in accordance with 29 C.F.R. � 1614.109, and the agency shall issue
a final action in accordance with 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 decision of the Administrative Judge and the final
agency action to the Compliance Officer at the address set forth below.
2. The agency shall reimburse all annual and sick leave complainant
used as a direct result of the agency's discriminatory actions.
3. The agency shall provide a minimum of sixteen (16) hours of training
in the obligations and duties imposed by Title VII to the appropriate
agency official(s) at the agency's Downtown Postal facility, Springfield,
Illinois, who failed to effectively respond to complainant's complaint.
The agency shall address these employees' responsibilities with respect
to eliminating harassment and discrimination in the workplace, and all
other supervisory and managerial responsibilities under equal employment
opportunity law.
4. The agency shall, with respect to the coworkers involved in the
instant action, consider disciplinary action or, in lieu thereof,
provide forty (40) hours of EEO sensitivity training.
5. The agency shall post copies of the attached notice at the Downtown
Postal Facility, Springfield, Illinois. 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.
6. 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 compensatory damages 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 (M1199)
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). 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:
March 16, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
Equal Employment Assistant
__________________________
Date
1Complainant also alleged reprisal discrimination in her formal
complaint. However, this allegation was unequivocally withdrawn on appeal
as noted in complainant's brief in support of her appeal dated January
21, 1997.