01970547
09-28-2000
Marianne Calunas, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Marianne Calunas v. United States Postal Service
01970547
September 28, 2000
Marianne Calunas, )
Complainant, )
) Appeal No. 01970547
v. ) Agency No. 4-J-480-1105-94
) Hearing No. 230-95-4122X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final decision
concerning her formal complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> The appeal is accepted pursuant to 29
C.F.R. � 1614.405. For the following reasons, the Commission REVERSES
the final agency decision.
ISSUE PRESENTED
The issue presented herein is whether the complainant has established
that she was the victim of sexual harassment and subjected to a hostile
working environment.
BACKGROUND
Complainant, employed by the agency as a Mail Carrier at the time of
the alleged discrimination, filed a formal complaint on September 28,
1994, alleging discrimination on the basis of sex (female), in which
she raised what has been identified as the issue presented. The agency
accepted the complaint for investigation. At complainant's request,
the matter was heard before an EEOC Administrative Judge (AJ). At the
conclusion of the hearing, the AJ issued a bench decision on July 9,
1996 in which she found that complainant failed to establish a prima
facie case of sexual harassment. On October 5, 1996, the agency issued
a final decision adopting the AJ's findings. It is from that decision
that complainant appeals.
In deciding that complainant failed to establish a prima facie case of
sexual harassment/hostile work environment, the AJ correctly reasoned
that, in order to prevail on such claims, complainant must establish
each of the following elements: (1) she is a member of a protected class;
(2) she was subjected to unwanted sexual harassment in the form of sexual
advances, requests for sexual favors, or other verbal and physical conduct
of a sexual nature; (3) the harassment of which she complained was based
on sex; (4) the sexual harassment had the effect of unreasonably
interfering in her work performance and creating an intimidating,
hostile, or offensive work environment; and (5) there was a basis for
imputing liability to the employer (i.e., by proving that the agency
had actual or constructive knowledge of the harassment and failed to
take appropriate, remedial action). According to the AJ, complainant
established the first four elements, but failed to establish the last.
In ruling that complainant established the first four elements of a prima
facie case, the AJ found that complainant was a member of a statutorily
protected class and subjected to sexually explicit pictures and vulgar
language over a period of time. Specifically, regarding the explicit
pictures and vulgar language, the AJ found that one of complainant's
co-workers persisted in inviting her out for dinner and other events
notwithstanding her repeated rejections of those invitations. That same
employee also described a dream to complainant in which he kissed her,
showed her a �Kiss Book,� hugged her and stated that it was good for him.
The AJ also found that complainant received sexually inappropriate
articles, cartoons, and devices in her workstation. During the period in
which complainant was harassed, a male co-worker told her that another
male co-worker �got off� while watching her case mail. Finally, the AJ
found that complainant produced sufficient evidence to prove that the
harassment interfered with her work. For example, during the spring and
summer of 1994, complainant missed several days from work due to stress.
Complainant also produced evidence that her work performance worsened
during the period in which she was harassed.
Regarding the last element, the AJ found that the agency did not have
actual knowledge of the harassment because complainant admittedly did
not go directly to management to complain about it. She reasoned that,
at most, complainant complained generally (i.e., leaving out specific
information such as the pornographic pictures) that her co-workers
were asking too many questions about her personal life. Likewise, she
found that the agency did not have constructive knowledge of the alleged
harassment because the comments and invitations from the alleged sexual
harassers were often in private at the complainant's workstation; and
that there was no evidence, even though the supervisor's desk was located
next to complainant's workstation, that the supervisor was present when
the harassment occurred.
ANALYSIS AND FINDINGS
All post-hearing factual findings by an Administrative Judge will be
upheld if supported by substantial evidence in the record. 29 C.F.R. �
1614.405(a). 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).
Because neither party disputes whether the first four elements of
a prima facie case of sexual harassment were established, the only
issue before us is whether complainant established the fifth element
(i.e., that there is a basis for imputing liability to the employer).
After considering the evidentiary record, we hold that the AJ's finding,
and the agency's adoption thereof, regarding whether complainant succeeded
in showing that there was a basis for imputing liability to the employer
is not supported by substantial evidence. In determining that complainant
did not prove that there was a basis for imputing liability, the AJ and
the agency essentially indicated that management was not aware of the
sexual harassment problem because complainant failed to complain with
specificity about it.
But notwithstanding complainant's failure to complain specifically, there
is ample evidence in the file which indicates that the agency knew or
should have known of the sexual harassment. Several agency employees,
including complainant's first supervisor,<2> testified that a sanitary
napkin was placed in complainant's workstation. The supervisor, assuming
that someone had left the napkin for complainant, removed it and threw
it away. That supervisor also gave complainant a picture of a nude
cartoon man which read, �I never forget an a**hole.� Several employees
also testified that sexual jokes and derogatory statements about women
were prevalent in the workplace. Complainant's first supervisor testified
that if a female employee complained that she was uncomfortable with a
male coworker, she would tell the employee to avoid the male coworker.
Complainant's second supervisor testified that she had never received
training on sexual harassment. She also testified that she was never told
that once an employee gives notice that s/he is being sexually harassed,
the employer has an obligation to investigate the matter thoroughly fully.
Finally, the second supervisor admitted that when the complainant came
to her, she had no guidance on the issue so she directed her to the EEO
office and the Postmaster. The Postmaster stated that while she had
some EEO training, she had never taken a course on sexual harassment.
Information in the file makes clear that complainant made general
complaints about the workplace on several occasions. Only when
complainant recounted with specificity what she had been experiencing
during the period in which she was harassed, did the Postmaster and an
EEO counselor arrange a sexual harassment training course which taught
employees how to correct the problem of harassment and the consequences
to the harasser. But, in light of the fact that complainant's first
supervisor noticed that a sanitary napkin had been placed at complainant's
workstation, and was privy to the derogatory jokes that were prevalent
in the workplace (in fact, she even participated), we find that the first
supervisor either did know or should have known about the hostile work
environment. For that reason, we find that complainant did establish
a prima facie case of sexual harassment/hostile work environment.
Now that complainant has met her burden of establishing a prima facie
case, the agency is liable unless it can show that it took immediate and
appropriate corrective action. In this case, agency officials stated
that once they learned of the sexual harassment, they arranged a sexual
harassment training course which taught employees how to correct the
problem of harassment and the consequences to the harasser. One of
the officials, the Postmaster, stated that she threatened to fire any
individual responsible for harassing behavior.
Evidence in the file, however, suggests that the agency's actions
were not immediate or appropriate. Although the complainant did not
immediately complain about the specifics of the harassment, we find
that her supervisor should have known that she was being subjected to
a hostile working environment before she complained with specificity.
For example, complainant made general complaints about the workplace on
several occasions. And many of her co-workers, including her supervisor,
stated that sexually derogatory jokes were common in the workplace.
Complainant's co-workers also stated that many of the male employees
had obscene pictures at their workstations. Complainant's supervisor
found a sanitary napkin at complainant's workstation and threw it away.
Those things, combined with the fact that the supervisor gave complainant
a picture of a naked cartoon man which read, �I never forgot an a**hole,�
convinces us that the supervisor knew or should have known of the hostile
environment to which complainant was subjected before she (complainant)
complained with specificity. Therefore, we find that the supervisor's
failure to take action as soon as she knew or should have known
constitutes a failure on the agency's part to respond immediately and
appropriately to the hostile work environment. Given the circumstances
as a whole and to the extent that the supervisor participated in the
activities, we find that the agency is liable to complainant for sexual
harassment. See Enforcement Guidance: Vicarious Liability for Unlawful
Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999).
CONCLUSION
After a careful review of the record, including complainant's arguments
on appeal, the agency's response thereto, and arguments and evidence not
specifically discussed in this decision, the Commission hereby REVERSES
the agency's final decision.
ORDER
The agency is ORDERED to take the following remedial action:
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall offer complainant the option of being either detailed or
transferred to the Royal Oak, Michigan office into a position with the
same title, salary, grade, and series as the position in which she is
currently employed. The offer shall be in writing and the complainant
shall have fifteen (15) calendar days from receipt of the agency's
written offer to accept or reject.
The agency shall train all employees, including supervisors and managers,
at the Madison Heights, Michigan office regarding harassment under
Title VII. In addition, the agency shall train all supervisors and
managers regarding how to recognize and prevent harassment/hostile work
environment and steps that should be taken when an employee complains
of such harassment.
The agency shall conduct a supplemental investigation regarding
compensatory damages for mental anguish, stress, medical expenses
and any other losses incurred as a result of the harassment found in
this decision.<3> The complainant is ordered to cooperate with the
supplemental investigation by providing all necessary information that
the agency requests to help it determine any damages or awards due.
After conducting the supplemental investigation, the agency shall give
the complainant a copy of the investigative report and provide her, in
writing, an opportunity to submit additional information to be included in
the investigation. If there is a dispute about the amount of compensatory
damages, the agency shall issue a check to the complainant for the
undisputed amount. The complainant may file a petition for enforcement
or clarification of the disputed amount with the Compliance Officer,
Office of Federal Operations, Equal Employment Opportunity Commission,
P.O. Box 19848, Washington, D.C. 20036.
The agency shall complete the actions contained in Orders (2) and (3)
within ninety (90) calendar days after this decision becomes final.
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 verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Madison Heights, Michigan facility
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.
ATTORNEY'S FEES (H0900)
If complainant 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 28, 2000
Date
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 Madison Heights, Michigan office confirms
its commitment to comply with these statutory provisions.
The Madison Heights, Michigan office supports and will comply with such
Federal law and will not take action against individuals because they
have exercised their rights under law. The Madison Heights, Michigan
office has been found to have discriminated on the basis of sex when
an employee was subjected to sexual harassment. The Madison Heights,
Michigan office has been ordered to take corrective action in the
form of giving the aggrieved employee the option of being detailed or
transferred to another office, conducting a supplemental investigation
regarding compensatory damages, and training all employees, including
supervisors and managers, regarding harassment under Title VII.
The Madison Heights, Michigan office will ensure that officials
responsible for personnel decisions and the 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 Madison Heights, Michigan office 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
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to
all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 29 C.F.R. Part 1614 in deciding the present
appeal. The regulations, as amended, may also be found at the Commission's
website at www.eeoc.gov.
2During the harassment period, complainant had two different supervisors.
Her first supervisor was detailed from the area in which complainant
worked on June 27, 1994. At that point, her second supervisor was
appointed.
3For guidance on investigating compensatory damages, see Carle
v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)
and Compensatory and Punitive Damages Available Under Section 102 of
the Civil Rights Act of 1991, EEOC Notice No. N 915.002 (July 14, 1992).