Marianne Calunas, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 28, 2000
01970547 (E.E.O.C. Sep. 28, 2000)

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).