Deborah J. Anderson v. United States Postal Service 05990655 July 10, 2000 Deborah J. Anderson, ) Complainant, ) ) v. ) Request No. 05990655 ) Appeal No. 01971483 William J. Henderson, ) Agency No. 1G-784-1013-94 Postmaster General, ) United States Postal Service,) Agency. ) ) GRANT OF REQUEST FOR RECONSIDERATION On March 31, 1999, Deborah J. Anderson (complainant) timely initiated a request for the Equal Employment Opportunity Commission (EEOC or Commission) to reconsider the decision in Deborah J. Anderson v. United States Postal Service, EEOC Appeal No. 01971483 (March 3, 1999). EEOC regulations provide that the Commissioners may, in their discretion, reconsider any previous decision where the party demonstrates that: (1) the previous decision involved clearly erroneous interpretation of material fact or law; or (2) the decision will have a substantial impact on the policies, practices, or operation of the agency. 64 Fed Reg. 37,644, 37,659 (to be codified at 29 C.F.R. § 1614.405(b)).<1> For the reasons that follow, complainant's request is GRANTED. The record reflects that complainant filed a formal EEO complaint alleging that the agency discriminated against her on the basis of sex (female) when, following her disclosure to her supervisor that she was pregnant, he told her that it would be in her best interest to resign and threatened her with termination. The complaint also cited other instances of alleged discriminatory treatment which complainant related to her supervisor's knowledge of her pregnancy. The agency dismissed the complaint for failure to state a claim, noting that no such action had been taken against complainant. On appeal, the Commission found that complainant's complaint stated a claim of hostile work environment harassment based on sex, and remanded that allegation for processing. Deborah Anderson v. U.S. Postal Service, EEOC Appeal No. 01945117 (December 7, 1994). The agency investigated the complaint, and following the investigation the case was heard before an EEOC administrative judge (AJ). However, the AJ did not frame the issue as one of harassment, but rather as three “terms and conditions of employment” matters: that complainant was advised that it would be in her best interest to resign from the agency; that complainant was denied workplace benefits; and that complainant's performance was criticized. The AJ issued a recommended decision finding no discrimination, which was accepted by the agency in its FAD.<2> The previous decision affirmed. In her request for reconsideration, complainant argues that the AJ's decision erred in finding that complainant had not been treated differently and less favorably subsequent to the disclosure that she was pregnant, noting multiple incidents supported by corroborated testimony. The agency did not reply to complainant's request. As a preliminary matter, the Commission finds that the AJ erred as a matter of law in the framing of the issue to be heard. In the prior appeal decision, the Commission specifically found that complainant's complaint stated a claim of hostile work environment discrimination based on sex, and remanded that claim for processing. This error was not harmless, as it led to complainant's complaint being analyzed inappropriately. The Commission further notes that both the agency and the AJ also erred with respect to the appropriate comparison group for complainant. Complainant's treatment should not have been compared, as the agency did, to other pregnant female transitional employees, of whom there were none at the time. Complainant's treatment also should not have been compared, as the AJ did, to other transitional employees generally and non-pregnant females in particular. Rather, to the extent that comparison employees may have been available, complainant should have been compared to other transitional employees, male and female, having medical conditions other than pregnancy. See Appendix to 29 C.F.R. Part 1604, Questions and Answers on the Pregnancy Discrimination Act; Bernardi v. U.S. Postal Service, EEOC Appeal No. 01954090 (August 21, 1997). Discrimination based on pregnancy is a form of discrimination based on sex, and therefore violates Title VII. Id. The standards to establish a claim of unlawful harassment under Title VII are well-settled. See, e.g., Yake v. Dept. of the Navy, EEOC Appeal No. 01951770 (January 5, 1998). 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. McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985). However, in order for harassment to be considered conduct in violation of Title VII, it must be pervasive. Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir. 1987). The conduct in question is evaluated from the standpoint of a reasonable person, taking into account the particular context in which it occurred. Highlander v. K.F.C. National Management Co., 805 F.2d 644 (6th Cir. 1986). Unless the conduct is very severe, a single incident or group of isolated incidents will not be regarded as discriminatory harassment. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). In order to support a finding of a hostile work environment, more than a few isolated incidents of enmity must have occurred. Hicks, 833 F.2d at 1415. For example, there must be a steady barrage of opprobrious comments and not a casual comment or accidental or sporadic conversation, in order to trigger equitable relief. Snell v. Suffolk Co., 782 F.2d 1094 (2d Cir. 1986). Complainant testified at the hearing that her immediate supervisor, the Supervisor of Distribution Operations (the DO Supervisor), shortly after learning she was pregnant, told her that it would be in her best interest to resign because she was pregnant and eventually he would have to fire her. Two witnesses, a male transitional employee (Witness 1) and a female career employee (Witness 2), also testified that the DO Supervisor made similar comments to them, expressing concern about complainant's ability to do her job on account of her pregnancy, about whether he would be able to accommodate her pregnancy-related restrictions (she had none), and that he wished she would quit. Complainant also testified that she was assigned to work on a machine which had two tasks, ledging and sweeping, and that, one of the tasks being more physically demanding than the other, it was customary for the two employees assigned to the machine to switch tasks periodically. Complainant further testified that after learning of her pregnancy, the DO Supervisor moved her from machine to machine with such timing that complainant was always in the position of having to perform the more strenuous of the two tasks because whomever she replaced had just finished his or her turn at the less strenuous task. Complainant testified that on the rare occasions that she would be engaged in a task which was not strenuous, such as casing bundled mail, the DO Supervisor would move her to a strenuous task. This testimony was corroborated by Witness 1, with whom complainant frequently worked. Complainant testified that after learning of her pregnancy, the DO Supervisor criticized her work performance, telling her to “hurry up” when in fact she was completely caught up and there was nothing to hurry; further, that when she inquired what she might do to improve her performance, the DO Supervisor merely responded again to “hurry up.” Witness 1 stated that he worked very quickly, and that complainant had no trouble keeping up with him. Witness 2, a former supervisor, stated that complainant did her share of the work and more. Complainant also testified that while she had no medical restrictions related to her pregnancy, she did have medical restrictions related to a prior back injury, and that once the DO Supervisor learned she was pregnant, in addition to the heavier machine work, he also assigned her to do more lifting from low levels in violation of her medical restrictions. Witness 1 testified to observing the increased amount of lifting complainant was made to do. Further, complainant testified that when she re-injured her back doing such lifting, on the return trip from the hospital the DO Supervisor said to her, “How long are we going to keep playing this game? Why don't you just quit?” According to the foregoing testimony, these and other actions by the DO Supervisor occurred on essentially a daily basis for a period of about one month. The DO Supervisor, by contrast, testified that complainant inquired of him about the effects of resigning her position. He denied all of the negative comments attributed to him, denied increasing complainant's work load, stated that he offered complainant lighter duties, and maintained that he “treated her with kid gloves” because of his concern for her. The agency produced no corroborating witnesses in support of the DO Supervisor's testimony. Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at 29 C.F.R. § 1614.405(a)), all post-hearing factual findings by an Administrative Judge will be upheld if supported by substantial evidence in the record. 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). In this case, however, the Commission finds that, apart from the errors of law discussed above, the factual findings of the AJ are not supported by substantial evidence. Complainant's testimony was straight-forward, detailed, consistent, and corroborated by two witnesses with first-hand knowledge of the events which formed the basis of the complaint. The AJ found no fault in the credibility of these witnesses. Nonetheless, he inexplicably relied upon the testimony of the DO Supervisor, despite having characterized that testimony as “self-serving and less than candid,” despite the testimony being uncorroborated and flatly contradicted on key points by three witnesses whose credibility was not questioned, and despite the DO Supervisor -- unlike complainant and Witnesses 1 and 2 -- having answered many of the questions posed to him, “I don't recall.” Under these circumstances, the Commission does not defer to the factual findings of the AJ. The testimony presented at the hearing by complainant and Witnesses 1 and 2 is sufficient to establish that the DO Supervisor harassed complainant on the basis of her sex when he engaged in the foregoing conduct after learning of complainant's pregnancy. With regard to the remedy to be afforded complainant, the record reflects that complainant stopped work on account of the re-injury of her back, and has since been in receipt of workers' compensation wage-replacement benefits. However, according to complainant's testimony, the re-injury occurred on account of the DO Supervisor failing to honor complainant's existing limitation on low-level lifting after he learned she was pregnant. Complainant is therefore entitled to back pay and benefits for the period she has been out of work on account of her back injury notwithstanding her receipt of workers' compensation benefits,<3> although the agency is entitled to off-set. See, e.g., Finlay v. U.S. Postal Service, EEOC Appeal No. 01942985 (April 30, 1997). Further, complainant has requested, and gave testimony regarding, her entitlement to compensatory damages. The record reflects that additional evidence bearing on compensatory damages was submitted to the AJ subsequent to the hearing, but this information was not made a part of the record. Complainant therefore will be afforded the opportunity to submit evidence bearing on compensatory damages directly to the agency, and the agency thereafter will determine the extent of complainant's entitlement to such damages. After a review of complainant's request for reconsideration, the previous decision, and the entire record, the Commission finds that complainant's request meets the criteria of 29 C.F.R. § 1614.405(b), and it is therefore the decision of the Commission to GRANT complainant's request. The decision of the Commission in Appeal No. 01971483 is REVERSED. There is no further right of administrative appeal from a decision of the Commission on a request for reconsideration. ORDER The agency is ORDERED to take the following remedial action: (1) The agency shall tender back pay and benefits retroactive to February 10, 1994, and ending on the expiration date of complainant's appointment as a transitional employee, offset by the amount of workers' compensation wage-replacement benefits complainant has received, in accordance with the procedures set forth in the paragraph below. If complainant's appointment would have been renewed absent the discrimination, she is entitled to back pay and benefits for the period of renewal as well. (2) Within ten (10) days of its receipt of this decision, the agency shall solicit from complainant evidence bearing on her entitlement to compensatory damages. The agency shall afford complainant no fewer than forty-five (45) calendar days from her receipt of its request to provide such information. The agency shall then determine the extent of complainant's entitlement to compensatory damages, and pay any such damages forthwith. (3) Within ninety (90) days of its receipt of this decision, the agency shall provide the Supervisor, Distribution Operations, with EEO training regarding his obligations under Title VII and the Pregnancy Discrimination Act. The agency shall determine the appropriate amount of back pay (with interest, if applicable) and other benefits due complainant, pursuant to 29 C.F.R. § 1614.501, no later than sixty (60) calendar days after the date it receives this decision. The complainant shall cooperate in the agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the agency shall issue a check to the complainant for the undisputed amount within sixty (60) calendar days of the date the agency determines the amount it believes to be due. The complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled “Implementation of the Commission's Decision.” 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 of the agency's calculation of back pay and other benefits due complainant, including evidence that the corrective action has been implemented. IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199) 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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. § 1614.409). POSTING ORDER (G1092) The agency is ORDERED to post at its Hector P. Garcia Post Office 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 (H1199) If complainant has been represented by an attorney (as defined by 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter referred to as 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 RECONSIDERATION COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400) 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: July 10, 2000 Date Frances M. Hart Executive Officer Executive Secretariat CERTIFICATE OF MAILING For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to complainant, complainant's representative (if applicable), and the agency on: _________________ ____________________________________ Date Equal Opportunity Specialist 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 that 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, Hector P. Garcia Post 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 United States Postal Service, Hector P. Garcia Post Office, has been found to have discriminated against the individual affected by the Commission's finding. The United States Postal Service, Hector P. Garcia Post Office, shall pay the affected individual back pay and benefits, proven compensatory damages, and reasonable attorney fees and costs, and shall provide EEO training for the management official found to have discriminated against the affected individual. The United States Postal Service, Hector P. Garcia Post Office, 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, Hector P. Garcia Post 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the present appeal. The regulations, as amended, may also be found at the Commission's website at www.eeoc.gov. 2Under the regulations then in effect, the decision of an AJ could be accepted, rejected, or modified by an agency. Under the Commission's revised regulations, the decision of an AJ is binding on both parties, subject to the right of appeal to the Commission. 64 Fed. Reg. 37, 644 37,657 (1999) (to be codified at 29 C.F.R. § 1614.110(a)). 3The record reflects that complainant, as a transitional employee, held a 360-day appointment.