Affirmative Defenses 3: Too Little, Too Late

By Meghan Droste, February 13, 2019

Although the movie theater closest to where I live features reserved seating, small theaters, and upscale snacks, I have to admit that I don’t see movies in the theaters all that often. So many of the big movies that come out every year are just the second, third or even seventh in a franchise.  Call me a snob, but I would appreciate some original ideas from time to time. I try to apply a similar standard for these articles, focusing on different topics, or at least a new spin on a topic, each time. As you can probably guess from the title of this month’s EEOC case update, I’m breaking my own rule.  A pair of decisions the Commission issued last fall involving the issue of affirmative defenses — a topic I covered in articles on the Jenna P. case last April  and November – were just too interesting to overlook.

In Sallie M. v. U.S. Postal Service, the complainant alleged that her supervisor subjected her to sexual harassment on a daily basis. See EEOC App. No. 0120172430 (Oct. 16, 2018). The harassment ultimately culminated with unwanted touching while the complainant was out on her postal delivery route. When the complainant reported the harassment, another supervisor told her that the harasser could be dangerous but apparently did not do anything else. After the complainant’s union steward got involved, the agency placed the harasser in non-duty status and initiated an investigation.  When the harasser then threatened to rape and kill her, the complainant asked the agency to move her to a different location for her safety.  She expressed her willingness to go to any location other than the post office near the harasser’s home. The agency then transferred her to that location in direct conflict with her request.

Although the agency placed the harasser in a non-duty status, investigated the allegations, and ultimately proposed the removal of the harasser, the Commission held that the agency could not successfully assert any affirmative defenses for several reasons.  First, the agency failed to take any action when the complainant initially reported the harassment and the management officials denied knowing about the report in their EEO affidavits. The Commission found these denials lacked credibility, in large part because the management officials’ responses to the EEO investigator were short and contained no details. Second, although the agency concluded its investigation within weeks of the union steward’s report of the harassment, the agency waited another two weeks to issue a report and then another month a half to propose the harasser’s removal. Finally, the Commission found that the agency failed to take proper action to prevent further harassment when it moved the complainant to a location closer to the harasser who had threatened her with physical harm.  As a result, the Commission found the agency liable for the sexual harassment as well as for retaliation.

The Commission issued its decision in Isidro A. v. U.S. Postal Service on the same day as the Sallie M. case.  See EEOC App. No. 0120182263 (Oct. 16, 2018).  In Isidro A., a manager used the n-word and the phrase “you people” during a staff meeting while referring to a group of African-American employees. The complainant and a union steward reported the comments within days of the meeting, but the agency did not initiate its investigation for another three weeks. The investigator issued a report less than two weeks later, finding that the manager admitted to making the statements. The agency waited another three months before issuing a proposed letter of warning in lieu of a 14-day suspension. Ultimately, the agency concluded that although the complainant had been harassed by the manager’s comments, it was not liable because it took prompt and effective corrective action. The Commission rejected the agency’s findings regarding the affirmative defenses. It found that the agency waited too long to initiate the investigation and too long to take any action after the investigator issued a report. The Commission also held that the proposed letter of warning was “a woefully inadequate response” to the harassment.  As a result, the Commission concluded that the agency was liable for the harassment.

The main takeaway from these cases is that any corrective action should be prompt — remember waiting for a week or two to start an investigation is not prompt — and effective in correcting what happened and preventing any further harassment. These are key points not just to avoid liability, but also to ensure a productive and safe work environment. Droste@FELTG.com