01975665
10-14-1999
Loretta R. Viers, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Loretta R. Viers v. United States Postal Service
01975665
October 14, 1999
Loretta R. Viers, )
Appellant, )
) Appeal No. 01975665
v. ) Agency No. 4C-450-1051-95
) Hearing No. 220-96-5339X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Appellant initiated an appeal to the Equal Employment Opportunity
Commission (Commission) concerning her allegation that the agency violated
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 EEOC Order No. 960.001.
ISSUE PRESENTED
The issue presented herein is whether appellant has established that she
was discriminated against based on sex when she was allegedly sexually
harassed.
BACKGROUND
Appellant filed a formal complaint in March 1995 alleging that she had
been sexually harassed. Following an investigation, a hearing was held
before an administrative judge (AJ) who thereafter issued a recommended
decision (RD) finding no discrimination. The agency subsequently issued
a final decision (FAD) dated June 4, 1997, adopting the RD. It is from
this decision that appellant now appeals.
In July 1994 appellant began working as a clerk in the CFS Unit at the
agency's facility in Dayton, Ohio. Appellant testified that, on her
first day in that capacity, her supervisor (the Responsible Official,
RO) "eyed her up and down" and told her that she was cute. According to
appellant, the RO then told her that he liked to flirt, that she should
expect to be flirted with, and that, if she needed anything, she should
come see him because the other supervisor was a "b****."
Appellant states that, over the next several months, the RO made a
number of sexually-oriented comments to her which she found offensive.
These included asking her about the state of her marriage and whether
she "fooled around"; suggesting to her that they walk into the CFS Unit
holding hands in order to start rumors; telling her that she needed
to smile more because she had a pretty smile; sniffing her neck while
commenting on her perfume; repeatedly asking for her address and phone
number; and constantly leering at her.
Appellant also testified that the RO made comments to her that were
implicitly sexual in nature. For example, she testified that on one
occasion she was wearing a shirt with the slogan, "Dayton Daily News -
Get it Every Day." When the RO read the slogan, he asked appellant, "Oh,
do you get it everyday? I wish I could." Appellant testified that it was
clear he was referring to sex, and, in this regard, she testified that
the RO regularly told everyone that he needed sex and was not "getting
enough" from his wife. Appellant cited another instance when the RO,
upon seeing a tattoo of hers stating "Joe and Loretta," said to her,
"Gee, I wish I were Joe." Finally, appellant cited an occasion when she
was about to retrieve some change from the front pocket of her pants, at
which point the RO came towards her and offered to help her get it out.
Although the RO denied appellant's allegations, several of her co-workers
testified that the RO regularly made comments concerning his sex life,
e.g., that he needed sex all the time and that he was going to have to
divorce his wife because she would not have sex with him. One individual
(Employee A) testified that the RO asked her, "Do you need a boyfriend
�cause I need a girlfriend ... I'm real horny ... If you need anything,
a [massage], a back rub, anything, just ask me."
Another co-worker (Employee B) testified that the RO "looks female
employees up and down while you try to speak with him, usually ending up
at the chest." Employee B also testified that the RO, when distributing
schedules to female clerks, would place the schedules in their shirt
pockets and exclaim that it was the best "feel" he had all day. Finally,
Employee B cited an instance when she returned from Florida and the RO
asked to see her tan line. Employee B removed her watch, at which point
the RO stated that he was hoping to see a different tan line.
Although appellant experienced psychological problems prior to working
for the RO, she states that his behavior contributed to these problems.
In this regard, appellant indicated that, as a result of the problems she
experienced with the RO, she went to the doctor in August 1994 "because
[she] was stressed out pretty bad," having trouble sleeping, and having
panic attacks. Appellant testified that she did not complain about this
behavior because the RO "was the boss ... it is his word against yours
... You don't want to make waves." Appellant also testified that she
stopped wearing makeup and fixing her hair so that the RO would leave
her alone.
According to appellant, the incident that "pushed her over the edge" and
caused her to take action occurred on December 31, 1994, while she was
in the ladies' restroom. The record reveals that the RO, looking for the
custodian, walked into the restroom. At that point, appellant was in one
of the stalls and was conversing with Employee A, who was at the sink.
When the RO walked in, Employee A yelled, "What are you doing?!?", to
which the RO replied, "Oh cool! I always wondered what it was like in
here." The RO then talked to the custodian for several minutes before
leaving the restroom. Following an investigation of the incident, the
RO received a one-week suspension, and he was subsequently moved out of
the CFS Unit.
Appellant testified that she was mortified and embarrassed by the restroom
incident, noting that, as a result, she was unable to report to work
for several months. Appellant also testified that she was diagnosed
with Post Traumatic Stress Disorder in February 1996.
Although the AJ found that the restroom incident was not sexual in
nature, she also found that appellant's testimony concerning the other
actions taken by the RO was credible. Regarding the latter finding,
the AJ noted that, although the RO denied appellant's allegations,
those denials were not credible in light of the overwhelming evidence
regarding his propensity for making sexually-oriented comments to his
female subordinates. The AJ stated further:
I find [the RO's] behavior towards the complainant and/or on the workroom
floor, in general, to be offensive and unprofessional, however, not at
a level sufficiently severe or pervasive to alter the conditions of the
complainant's employment or to create an abusive working environment.
RD at 19. In support of that conclusion, the AJ cited appellant's
testimony that she had no reason to file a complaint prior to the
restroom incident. The AJ also cited the Commission's Guidance on
Discrimination Because of Sex, EEOC Notice No. N-915-050 (March 19,
1990), for the proposition that "[s]exual flirtation, innuendo, or vulgar
language that is merely trivial or annoying will not establish a hostile
environment."
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, appellant 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;<0> (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. 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).
Initially, the Commission finds sufficient evidence to conclude that
appellant has satisfied elements (1) through (3). Specifically, there is
overwhelming evidence in the record that the RO routinely made offensive,
sexually-oriented comments in the workplace. Not only were a number of
these comments directed at appellant, but it is clear that the comments
were unwelcome to her.
With regard to element (4), the AJ found that the RO's comments, although
trivial and annoying, were not sufficiently severe and pervasive
to establish a hostile work environment. The Commission disagrees
with that conclusion and finds that the RO's actions went well beyond
trivial and annoying. Rather, the Commission finds that the incredibly
offensive nature of the RO's actions, coupled with their pervasiveness,
was sufficient to create a hostile environment. This includes the
plethora of sexually-oriented comments as well as the restroom incident.
Although that incident was not explicitly sexual in nature, the Commission
finds that, when considered in the context of the RO's other actions,
it is illustrative of his lack of respect for his female subordinates.
Furthermore, although appellant indicated that she did not consider filing
a complaint prior to the restroom, the Commission does not construe this
as an admission that she was not affected by the RO's prior behavior.
In this regard, appellant's testimony supports a finding that it was
a combination of the prior behavior and the restroom incident that,
as appellant phrased it, "pushed her over the edge."
In considering whether appellant has satisfied Element 5, the Commission
notes that the agency is potentially liable for the harassment if
appellant can demonstrate that it was created by either a supervisor or
someone who acts in a supervisory capacity. Burlington Industries, Inc.,
v. Ellerth, 118 S.Ct. 2257 (1998); 2270; Faragher v. City of Boca Raton,
118 S.Ct. 2275 (1998). Because the RO was appellant's supervisor, the
Commission finds that a basis exists under which liability for the RO's
harassment can be imputed to the agency. Accordingly, because appellant
has satisfied Elements 1 through 5, we find she has established that
she was subjected to sexual harassment.
Liability
An employer is subject to vicarious liability for sexual harassment when
it is "created by a supervisor with immediate (or successively higher)
authority over the employee." Burlington Industries, Inc., v. Ellerth,
118 S.Ct. at 2270; Faragher v. City of Boca Raton, 118 S.Ct. at 2292-93.
When the harassment does not result in a tangible employment action
being taken against the employee, the employer may raise an affirmative
defense to liability. The agency can meet this defense, which is
subject to proof by a preponderance of the evidence, by demonstrating:
(a) that it exercised reasonable care to prevent and correct promptly
any sexually harassing behavior; and (b) that appellant unreasonably
failed to take advantage of any preventive or corrective opportunities
provided by the agency or to avoid harm otherwise. Burlington Industries,
Inc., v. Ellerth, 118 S.Ct. at 2270; Faragher v. City of Boca Raton,
118 S.Ct. at 2293. This defense is not available when the harassment
results in a tangible employment action (e.g., a discharge, demotion,
or undesirable reassignment) being taken against the employee.
Because the RO supervised appellant, the agency is subject to vicarious
liability for his harassment. In determining whether the agency can raise
a defense to that liability, we initially find insufficient evidence to
conclude that the harassment resulted in a tangible employment action
being taken against appellant. In so finding, we note that appellant has
not identified such an action that was related to the RO's harassment.
Therefore, the agency can avoid liability for the harassment by satisfying
the affirmative defense.
Whether an employer can meet the first prong of the defense, i.e., that it
exercised reasonable care to prevent and correct promptly any sexually
harassing behavior, depends on the circumstances of the particular
situation. Enforcement Guidance: Vicarious Liability for Unlawful
Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999), at 15.
At a minimum, however, the employer must have an anti-harassment policy
and complaint procedure that contains the following elements: (1) a clear
explanation of what constitutes prohibited conduct; (2) assurances that
employees who bring complaints of harassment or provide information
related to such complaints will be protected against retaliation;
(3) a clearly described complaint process that provides possible
avenues of complaint; (4) assurance that the employer will protect
the confidentiality of harassment complaints to the extent possible;
(5) a complaint process that provides a prompt, thorough, and impartial
investigation; and (6) assurance that the employer will take immediate
and appropriate corrective action when it determines that harassment
has occurred. Id. at 17.
It is not apparent from the record that the agency had a policy in effect
during the period in question that satisfies the aforementioned elements.
Moreover, although the RO testified that the agency had an active program
to prevent sexual harassment, he was not sure when it was developed.
When asked whether it was in place in 1994, the RO replied, "Not to the
extent it is today." Additionally, when the RO was asked whether he had
ever provided his employees with a statement that sexual harassment would
not be tolerated in the workplace, he replied that he had, but that it
was not until after appellant had filed her complaint. Based on the
foregoing, we find that the agency has not met the first prong of the
affirmative defense. Accordingly, the agency is liable for the RO's
harassment of appellant.
Finally, although appellant alleges that the RO's actions were in
retaliation for her prior EEO activity, it is apparent from the record
that appellant had not engaged in such activity at the time these actions
occurred. Accordingly, we find appellant has not established that she
was retaliated against.
CONCLUSION
It is the decision of the Commission to REVERSE the FAD and find that
appellant was discriminated against based on sex when she was sexually
harassed.
The agency is ORDERED to take the following actions:
1. The agency shall take appropriate preventative steps to ensure that no
employee is subjected to sexual harassment and to ensure that appropriate
steps are taken immediately after management is notified of any such
harassment.
2. The agency shall determine whether appellant is entitled to the
reinstatement of any leave used as a result of the harassment she
experienced.
3. The agency shall ensure that the RO is not permitted to work in the
same unit as appellant.
4. The agency shall conduct a supplemental investigation to determine
whether appellant is entitled to compensatory damages. The agency
shall allow appellant to present evidence in support of her compensatory
damages claim.<0> Appellant shall cooperate with the agency in this
regard. Thereafter, the agency shall issue a final decision. 29 C.F.R.
�1614.110. The supplemental investigation and issuance of the final
decision must be completed within sixty (60) calendar days of the date
this decision becomes final. A copy of the final decision must be
submitted to the Compliance Officer, as referenced below.
5. The agency shall provide remedial training for the RO and all
managers and supervisors located at the Dayton, Ohio, Post Office to
ensure that acts of sexual harassment do not recur, that no retaliatory
acts are taken against any employee who opposes unlawful discrimination,
including sexual harassment, and that persons reporting incidents of
alleged sexual harassment are treated in an appropriate manner.
POSTING ORDER (G1092)
The agency is ORDERED to post at its facility in Dayton, Ohio, 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.
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 (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.
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. �1614.604(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. 14, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated ___________ which found that a
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privileges of employment.
The United States Postal Service, Dayton, Ohio facility, supports and
will comply with such Federal law and will not take action against
individuals because they have exercised their rights under law.
The United States Postal Service, Dayton, Ohio facility, has been found
to have discriminated against an employee by not taking adequate steps
to prevent her sexual harassment by her supervisor.
The agency has been ordered to restore any leave taken by the employee
as a result of the harassment, ensure that the employee and the harasser
no longer work in the same area, and determine whether the employee is
entitled to an award of compensatory damages. The United States Postal
Service, Dayton, Ohio facility, will ensure that officials responsible
for personnel decisions and terms and conditions of employment will
abide by the requirements of all Federal equal employment opportunity
laws and will not retaliate against employees who file EEO complaints.
The United States Postal Service, Dayton, Ohio facility, will not in any
manner restrain, interfere, coerce, or retaliate against any individual
who exercises his or her right to oppose practices made unlawful by,
or who participates in proceedings pursuant to, Federal equal employment
opportunity law.
_____________________________
Date Posted: _____________________
Posting Expires: __________________
29 C.F.R. Part 1614
01 In addition to considering conduct that is explicitly sexual in
nature, the Commission will consider other conduct or comments which
are related to the complainant's gender.
02 In order to assess the claim, the agency shall request from
appellant evidence of and testimony establishing any pecuniary and
non-pecuniary injury suffered and its link to the agency's retaliatory
actions. See Feris v. Environmental Protection Agency, EEOC Appeal
No. 01934828 (August 10, 1995), request to reopen denied, EEOC Request
No. 05950936 (July 19, 1996); Carle v. Department of the Navy, EEOC
Appeal No. 01922369 (January 5, 1993); Rivera v. Department of the Navy,
EEOC Appeal No. 01934157 (July 22, 1994).