Here is a sexual harassment case that I would like to get your readers’ feedback
In this case the EAS-17 Postal Supervisor was fired. In a weird twist, the court viewed him as merely a “co-worker” rather than her boss, which reduced the Postal Service’s potential liability. This could become a trend in future postal EEO complaints.
So, if a Postal Supervisor is considered a “co-worker” under the Supreme Court decision, are postal employees still required to follow instructions of their supervisor? Postal Employees are mandated to follow the instructions of their supervisor unless it is illegal or hazardous to their health. Postal Employees on the other hand are told by union stewards that “co-workers” cannot issue instructions to craft employees.
The other question that arises out of this case: If a “tangible employment action” is “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits,” the only employees who can sue or complain about sexual harassment would be supervisors and levels of management above them.
This case has left all postal employees in a Catch-22.
By the way, unless there are two people with the same name working at the this facility–the Postal Supervisor who supposedly was fired is still employed.
Here is a sanitized version of the lawsuit without the names. The names were omitted because the issue is more so of the court deciding that Postal Supervisors are co-workers.
The plaintiff worked for the Postal Service as a Transitional Employee (“TE”) delivering mail on various routes when a permanent employee “was on vacation or sick leave, or where a route did not have an assigned permanent carrier.”
The TE refers to person she is accusing of sexual harassment as her “supervisor,” but his legal status as to her is a matter of dispute. He was classified by the Postal Service as an EAS-17 Supervisor of Customer Service (SCS) and was responsible for “supervising subordinate employees in the performance of their assigned duties.” Specifically, his job description included “evaluat[ing] the daily workload”; “mak[ing] carrier and route assignments”; “mak[ing] temporary changes in routes and time schedules”; “authoriz[ing] overtime work”; “[e]stablish[ing] work schedules”; and “allocat[ing] work hours to meet service requirements.”
Beginning in January 2010 and continuing for approximately ten months, the SCS and TE exchanged numerous text messages and videos. The exchanges were often sexually explicit in nature. During this time frame, the SCS also made requests that seemed based on his authority over TE, as well as suggestions that he would reward TE for her responses. “Even if I did have them lined up, you would be in the front of the line!!!!!”); (“Do you know rt 115?”3 “I might can get you on it tomorrow.”); (“Think you might can take a picture for your `Master’ tonight?”).
The TE claims that, generally, she responded to the SCS’s requests by sending photos she found on the Internet or text messages copying words from pornographic magazines. The record also includes some of her messages from early November 2010, including the following texts: “WOW!! You definitely know how to put a smile on my face”; “Good morning:)”; “LOL! You are too funny:)”; and “OMG . . . I just saw it, sorry! I just adore you:).”
The TE did not report this conduct to her employer; rather, her husband found the messages on November 16, 2010, and reported them to the Postal Service. The TE claims that she only participated in the exchanges “due to a change in my work status when I did not participate and for fear that I would be retaliated against if I did not.” The TE explained that she received “favorable treatment” when she complied with SCS’s requests, and when she did not honor his requests, the SCS brought her in to work after the other workers and gave her “bad” routes. Nonetheless, the TE testified that overall, in 2010 her “hours of work remained fairly constant” and she “made more money [that year] than [she] ever made.”
At no point did the TE tell anyone at the Postal Service about the messages or otherwise avail herself of the protections and procedures laid out in the Postal Service’s sexual harassment policy. She claimed she was afraid “management[] would look at me like I was a troublemaker and I would lose my job.”
The TE filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) alleging that she was sexually harassed by the SCS. The EEOC issued a decision finding no actionable claim, and the Postal Service reviewed and adopted that decision, concluding, “[Y]ou have not shown that you were the victim of illegal discrimination.”
On March 28, 2013, the TE filed suit in district court alleging one count of sexual harassment. On August 15, 2014, the district court dismissed the suit concluding that the SCS was a co-worker, not a supervisor, under a Supreme Court’s decision . It then decided the TE presented no evidence that the Postal Service’s investigation was inadequate; therefore, USPS was not negligent in controlling the TE’s working conditions.
The parties dispute whether the SCS was TE’s supervisor as a matter of law pursuant to the Supreme Court decision. Even assuming he was, however, we conclude that Appellant has not marshaled sufficient evidence to demonstrate that SCS’s conduct culminated in a tangible employment action, and Appellee has successfully raised the affirmative defense set forth in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) (the “Faragher-Ellerth defense”).
Title VII is violated “when the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment . The district court construed Appellant’s complaint to contain two causes of action under Title VII: a hostile work environment claim and a quid pro quo harassment claim. For both causes of action, there must be some basis for imputing liability to the employer.
Vance explains that if the alleged harasser is a supervisor, [and] the supervisor’s harassment culminates in a tangible employment action, the employer is strictly liable. But if no tangible employment action is taken, the employer may escape liability by establishing, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided. Therefore, we first turn to whether the SCS’s alleged harassment culminated in a tangible employment action.
A “tangible employment action” is “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” There is no record evidence demonstrating that the SCS had the authority to hire, fire, promote, or reassign Appellant to a position with significantly different responsibilities. Therefore, we look to whether the SCS made a “significant change in [Appellant’s] benefits.” This court has quoted with favor the Eleventh Circuit’s statement that “[a] reduction in an employee’s hours, which reduces the employee’s take-home pay, qualifies as a tangible employment action.”
On this point, Appellant presents an attachment to her EEOC complaint, wherein she stated, “During the course of [] SCS’s repeated solicitations, . . . he . . . reduce[d], alter[ed], and change[d] my working hours . . . .” She also stated that the SCS “started [b]ringing [her] in at 9:30-10:00 A.M. and the other TE’s were [b]eginning work at 7:30 A.M.”
Appellant’s fellow carriers also submitted affidavits in support of her claim. An affidavit from a fellow carrier stated, “[SCS would bring her in late at 10 and the rest of the TE’s would be starting at 7:30.” Another carrier stated, “I saw that she was coming in later than the other TE. I also notices [sic] she was not working as much as the other TE’s.” THE CARRIER also declared, [Appellant] would always get the worst routes and when she would question [her] supervisor she would be told that[`]s how it is. The reason I know this is we (other carriers) would question why [Appellant] would get dumped on all the time. I have worked for the Post Office for 15+ years and I have never seen someone treated as poorly as she was treated.
Appellant also admitted, however, that TEs “kind of fill in where they need a carrier on a transitional basis,” and she did not always “have the same route every day,” but her routes would “change by the day.” Indeed, SCS stated that all TEs were sometimes scheduled to work five days, and sometimes six days, and if a TE “was going to work six days in a week, they would be scheduled to come in later in the day on some days that week to keep their basic weekly hours around forty.” Appellant has presented nothing to dispute this testimony. Therefore, the fact that Appellant was coming in later on certain days, or that an employee observed that she was “not working as much,” does not necessarily mean that her hours were reduced. In fact, Appellant herself admitted that her “hours [] remained fairly constant.” Moreover, the record includes timesheets from each of the 16 weeks that Appellant worked a six-day workweek in 2010, and these timesheets show that during these pay periods, she was receiving anywhere from 3.5% to 22.9% overtime, and she never dropped below a 40-hour workweek.
Appellant has presented no means to delineate timesheets during periods when she succumbed to SCS’s requests to periods when she did not. Appellant has presented no gauge of how her hours converted to pay during the time she was texting with SCS, and how that pay may have decreased or increased. To the extent the case law dictates that a tangible employment action can be a positive change in benefits (an issue we do not decide today), we have nothing, besides Appellant’s bare assertions, demonstrating that her hours were increased after responding to SCS’s requests.
Appellant has failed to present more than a “mere scintilla of proof” that SCS’s conduct resulted in a “significant” change in her benefits, and we conclude that there is no evidence “upon which a jury could properly proceed to find a verdict” in her favor on this issue. Therefore, Appellant has not created a genuine dispute of fact on the issue of whether SCS’s actions culminated in a tangible employment action.
We have explained, “[W]hen the harasser is a supervisor, the employer is presumptively liable under the doctrine of respondeat superior, unless the Faragher-Ellerth defense applies.” Thus, Appellee can escape liability by establishing, by a preponderance of the evidence: (1) it exercised reasonable care to prevent and correct any harassing behavior; and (2) Appellant unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided.
We first address whether there is any dispute that the employer exercised reasonable care to prevent and correct SCS’s harassing behavior.
We have held that “dissemination of an effective anti-harassment policy provides compelling proof that an employer has exercised reasonable care to prevent and correct sexual harassment.” Here, Appellee had a clear and comprehensive policy. It explained, first, to “[t]ell the [h]arasser to [s]top!” J.A. 139. It also gave supervisors direction to “[c]onduct a thorough inquiry” and “[t]ake prompt action to put an end to the harassment.” And most importantly, it explained that employees who are being harassed should report to a supervisor, manager, Human Resources personnel, or the inspector; or “if [the employee is] uncomfortable,” he or she could “ask a union representative or coworker” to help report the conduct. Further, the Postal Service clearly took swift action to correct the harassment. After Appellant’s husband made his report, SCS was terminated, and there was no further harassment.
Next, we look to whether Appellant unreasonably failed to take advantage of the preventive or corrective opportunities that the Postal Service provided. Appellant contends that she did not want to report the harassment because it made her uncomfortable and she feared negative repercussions at her job. (“I didn’t want to . . . ruffle any feathers, get anybody mad at me or anything.”); (“I don’t like confrontation especially with my supervisor who controls my work life.”).
However, “an employer cannot be expected to correct harassment unless the employee makes a concerted effort to inform the employer that a problem exists.” “Little can be done to correct th[e] objectionable behavior unless the victim first blows the whistle on it. An employee’s subjective fears of confrontation, unpleasantness or retaliation thus do not alleviate the employee’s duty . . . to alert the employer to the allegedly hostile environment.”Based on this precedent, Appellant’s reasons for not reporting the alleged harassment are simply not sufficient.
For these reasons, Appellee has satisfied the elements of the Faragher-Ellerth affirmative defense, and Appellant cannot defeat the motion for summary judgment.
For the foregoing reasons, we affirm the district court.
AFFIRMED.
FootNotes
3. Route 115 was a desirable route because of the ease of access to the boxes and relatively flat terrain.
4. TE claims the policy was not effective and calls the investigation into her case a “sham,” but she produces no evidence to support this claim. Rather, the evidence shows that management responded rapidly to complaints from another employee regarding SCS’s alleged harassment, and in TE’s case, Investigator conducted a thorough yet swift investigation, culminating in SCS’s termination.