Joyce M. Sanford v. United States Postal Service 01994955, 01A01366, 01A22650 09-12-02 . Joyce M. Sanford, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. Appeal Nos. 01994955, 01A01366, 01A22650<1> Agency Nos. 1F-908-0032-98; 1F-908-0025-99; 1F-908-0013-02 DECISION<2> Complainant timely initiated an appeal from final agency decisions (FAD) concerning her complaints of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The appeal is accepted pursuant to 29 C.F.R. § 1614.405. For the following reasons, the Equal Employment Opportunity Commission (EEOC or Commission) reverses the agency's final decision. ISSUE Whether complainant was discriminated against on the bases of race (African-American), national origin (African-American), sex (female), religion (Baptist), color (Black), age (D.O.B. 02/01/54) and whether she was retaliated against for previously participating in Equal Employment Opportunity (EEO) activity when 1) continuing for years, employee 1 stalked complainant; 2) on July 19, 1998, a hostile work environment was created when employee 1 sexually harassed complainant; 3) on August 14, 1998, complainant was denied leave under the Family Medical Leave Act (FMLA); 4) on September 3, 1998, complainant was referred to the Employee Assistance Program (EAP); 5) continuing since April 7, 1999, the agency violated the FMLA by delaying complainant's return to work; and 6) continuing since April 7, 1999, she was sexually harassed and a hostile work environment was created.<3> BACKGROUND The record reveals that during the relevant time, complainant was employed as a clerk at the agency's Long Beach, California Processing and Distribution Center. Complainant sought EEO counseling and subsequently filed formal complaints on October 9, 1998 and May 27, 1999, alleging discrimination as set out above. Investigations in these matters overwhelmingly showed that at least since 1993 when employee 2 became complainant's boyfriend, employee 1 engaged complainant and employee 2 in verbal fights. Employee 1 stalked complainant, by following and staring at her, by blocking her path with his body or with work carts, by waiting for her in the parking lot and/or picnic table. At least by August 7, 1998, complainant complained to the District Manager that employee 1 sexually harassed her. The District Manager attested (Exhibit (Ex.) I) that he referred complainant's claims of sexual harassment to the Manager, Distribution Operations, who attested that complainant never complained to him of sexual harassment, but that all parties (complainant and employees 1 and 2) accused each other of harassment (Ex. L). Other managers acknowledged being aware of complainant's allegations of harassment but denied or did not acknowledge that complainant complained of sexual harassment (Exs. B, E, H, J, P). One former supervisor (Ex. V) attested that employee 1 would intentionally move into complainant's work area when complainant appeared but would disappear when the former supervisor appeared; that employee 1 lingered at the time clock or at the picnic table after his tour ended; and that employee 1 appeared wherever complainant appeared. This former supervisor interpreted employee 1's behavior as stalking. Id. Other co-workers attested that employee 1 stared at complainant, taunted and intimidated her for years, and complainant's complaints to management were ignored. Exs. U, Y, EE, FF, JJ, NN, OO, QQ, RR, SS. One co-worker attested that employee 1 constantly followed complainant in his skin tight pants “with his Johnson pushed right up front and his hand or hands in his pocket moving constantly.” Ex. GG. At least by 1998, complainant complained to her superiors about employee 1's stalking. Complainant's superiors did not identify employee 1's behavior as proscribed sexual harassment, but as unsupported complaints, since employee 1 asserted that it was complainant who harassed him. Exs. S, 12. The agency's solution was to order complainant and employee 1 not to have contact with each other, and on March 2, 2001, to change complainant's lunch and break times so they would not coincide with employee 1's. The agency's original investigation into complainant's allegations was limited. No affidavits were collected from co-workers, and the investigation did not address the claim of co-worker sexual harassment. At the conclusion of the investigation, complainant was informed of her right to request a hearing before an EEOC Administrative Judge or alternatively, to receive a final decision by the agency. Complainant requested that the agency issue final decisions. In its FADs, the agency concluded that no evidence supported complainant's claims that she was harassed or discriminated against. On appeal, complainant contended that employee 1's actions amounted to sexual harassment and harassment on other bases set out above; the agency requested that we affirm its FADs. ANALYSIS Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently patterned or pervasive. Hurston v. United States Postal Service, EEOC Appeal No. 01986458 (Jan. 19, 2001), Request to Reopen denied, 05A10331 (Jun. 14, 2001), citing Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (Aug. 14, 1998). To establish a prima facie case of harassment or hostile environment discrimination a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; and (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment. 29 C.F.R. §1604.11; see generally, EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, Section I. In a case of co-worker sexual harassment, an agency is responsible for acts of sexual harassment in the workplace where the agency (or its agents) knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. Id. Here, there is no doubt that employee 1's stalking amounts to harassment, and we are persuaded that this was sexual harassment. While some evidence showed that employee 1 was abrasive with other employees (Exs. RR, PP), the weight of the evidence showed that employee 1's actions were directed at complainant and other women, and not at male employees. For example, according to co-worker GG, employee 1's actions were directed at complainant because of complainant's gender. The evidence further showed that employee 1's actions were unwanted, and that they created for complainant an intimidating, hostile and offensive work environment. The agency defended its actions by asserting that it believed the stalking conduct was harassment, but not sexual harassment, and that in any event, it took immediate and effective corrective action. Exs. B, E, H, I, J, L, P. Where so many supervisors and co-workers recognized employee 1's behavior as harassment or stalking, and especially in light of the many statements and/or attestations that employee 1 harassed women, and employee GG's attestations about employee 1's sexually harassing behavior, we find that the agency should have known that complainant presented a claim of sexual harassment which should have been immediately and effectively remedied. The agency's orders that complainant and employee 1 stay away from each other, and its action of changing complainant's break and lunch times so they would not coincide with employee 1's, was inadequate. Clearly, the agency knew about the misconduct, and failed to take immediate and appropriate corrective action. The agency is therefore liable for harassment by complainant's co-worker. Regarding claims 3 (agency discriminatorily denied leave under the FMLA) and 5 (agency discriminatorily violated the FMLA when it delayed complainant's return to work) we find that to the extent that complainant asserted that the agency failed to process FMLA requests because of her protected class bases, her collateral attack on the FMLA process failed to state a claim. Schneider v. United States Postal Service, EEOC Request No. 05A01065 (Aug. 15, 2002). Regarding claim 4, complainant asserted that she was referred to EAP as a remedy, or punishment, for her repeated complaints about employee 1's harassing behavior. We agree that to the extent that the agency counseled that complainant seek treatment from EAP in satisfaction of its obligation to provide an immediate and effective remedy, this was inadequate. DECISION For the reasons set out above, we find that the agency discriminated against complainant because of her sex in claims 1, 2, 4 and 6. We find no evidence to support complainant's claims that she was discriminated or retaliated against on the bases of her race, national origin, religion, and/or age,<4> or because of her earlier participation in protected EEO activity. ORDER 1. The agency shall immediately reassign employee 1 to another facility away from complainant, and ensure that complainant and employee 1 have no contact. If complainant desires, the agency shall reassign complainant to the break and lunch schedule she had before the agency reassigned complainant to a break and lunch schedule different from employee 1's. It is not clear if complainant's tour of duty times were earlier changed so her tour would not coincide with employee 1's tour.<5> If it was changed for this reason, and if complainant desires, the agency shall reassign complainant to the tour of duty she had before it was changed. 2. The agency should consider taking disciplinary action against complainant's supervisors for failing to provide an immediate and effective remedy. If the agency decides to take disciplinary action, it shall identify in its compliance report the action taken. If the agency decides not to take disciplinary action, it shall set forth in its compliance report the reason(s) for its decision not to impose discipline. 3. The agency shall provide training in identifying and remedying sexual harassment to those supervisors and managers involved in these matters. 4. The agency shall post a notice, as provided below. 5. Within 30 days of the date this decision becomes final, the agency shall request objective evidence from complainant in support of her claim for compensatory damages, with sufficient specificity to allow complainant to reasonably respond to the agency's request.<6> The agency shall conduct a supplemental investigation to determine the amount of compensatory damages due to complainant, if any, and issue a final agency decision. The supplemental investigation and final agency decision shall be completed within 60 days of complainant's presentation of objective evidence. A copy of the final agency decision must be submitted to the Compliance Officer, as described below. 6. The agency shall submit a report of compliance as noted below. All documents submitted to the Compliance Officer must be provided to the complainant. POSTING ORDER (G1092) The agency is ORDERED to post at its Long Beach, California, Processing and Distribution Center 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 insure 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 (K0501) 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) (1994 & Supp. IV 1999). 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 (M0701) 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 ____09-12-02______________ Date 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. (1994 & Supp. IV 1999) 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 DISABILITY with respect to hiring, firing, promotion, compensation, or other terms, conditions or privileges of employment. The United States Postal Service, Long Beach, California, Processing and Distribution Center 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, Long Beach, California, Processing and Distribution Center has been found to have failed to immediately and effectively remedy a complaint of sexual harassment. The agency has been ordered to ensure that the complainant have no more contact with the harasser; to provide EEO training to the supervisors and managers at the facility who are responsible for allowing the sexual harassment to continue; and to pay appropriate compensatory damages. The United States Postal Service, Long Beach, California, Processing and Distribution Center, 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, Long Beach, California, Processing and Distribution Center 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 16141 Although the agency dismissed this last complaint (01A22650) about employee 1's January 7 and 28, 2002 loitering in the break room because complainant failed to show how she was harmed by employee 1's action, we find, based on the attestations produced in the supplemental investigation, that complainant's claim about the Jan. 2002 events is credible, and we have no reason to suspect that the Jan. 2002 events did not occur. The Jan. 2002 events are further evidence that the claimed sexual harassment has been ongoing since 1998, and we find that no further investigation of this claim is needed. 2 On July 8, 2002 we issued an Interim Decision which ordered the agency to conduct a supplemental investigation. This decision is based on the original and supplemental investigation. 3 Complainant initially alleged disability (acute/chronic asthmatic bronchitis, chronic allergic rhinitis; anxiety neurosis secondary to long- term stress) as a basis of discrimination, but withdrew this basis of discrimination in her response to the July 8, 2002 Interim Order. 4 On August 19, 2002, complainant argued, through her attorney, that by that date she had not received a copy of the agency's supplemental investigation and that we should make an adverse inference and resolve the evidence against the agency. In light of the evidence in this record, we decline to reach this question. 5 See March 22, 2002 Notice of Final Interview & Appeal Rights, at 2. 6 The Commission's decision in Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993), describes in detail the type of evidence which should be presented in support of a claim for compensatory damages.