Juliana Hackman, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Midwestern), Agency.

Equal Employment Opportunity CommissionMar 16, 2000
01971882 (E.E.O.C. Mar. 16, 2000)

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.