Loretta R. Viers, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 14, 1999
01975665 (E.E.O.C. Oct. 14, 1999)

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).