VICTORIA L. HAMER, Complainant,

VS.

UNITED PARCEL SERVICE, INC., Respondent.


FINDINGS OF FACT

1. The Complainant, Victoria L. Hamer, timely filed verified complaint CP #09-84-12057 with the Iowa Civil Rights Commission on August 27, 1984, alleging a violation of Iowa Code section 601A.6, discrimination in employment on the basis of sex, by Respondent United Parcel Service, Inc.


2. The complaint was investigated, probable cause found, conciliation attempted but failed. Notice of Hearing was issued on September 16, 1987.

3. Hamer started working for UPS on April 4, 1977, as a washer/porter. Sometime in 1980, she became an on-call delivery driver and continued in that position until her termination March 21, 1984. Hamer was terminated for "no call/no show." (T13)

4. It was customary for UPS to call on-call employees between 7 and 8 a.m. on the mornings drivers were needed. (T14) On-call employees provided UPS with phone numbers at winch they could be reached. These numbers were posted in the UPS office near the phone (T14).

5. From January 1984 through sometime in March of 1984, Hamer lived with friends, Homer and Robin McBeth, in Oskaloosa. It was McBeths' number which Hamer gave UPS for calls when she was on-call or on lay off. That phone number was 673-3157 (T15).

6. On the weekend prior to her termination, Hamer started to move to a new location. On Friday, March 16, Robin McBeth made arrangements with Northwestern Bell to have Hamer's phone connected. When orders were taken, a two-day installation date was given. The Northwestern Bell records show that Hamer's phone service was completed on Monday, March 19. In the normal course of business, Hamer's number would not have been available until after 9:00 A.M. on Tuesday, March 20. If someone requested the number prior to that time from directory assistance, the response would be that there was no listing for that person. The only way to get the number prior to that time would be to call the business office. If someone obtained the number and called it before the phone was plugged into the jack, the caller would hear a ring and, of course, the receiver would hear nothing. The first recorded call on the Northwestern Bell records was on March 20, 1984, at 4:27 P.M. to Hedrick, Iowa. (R's Exh. DDD) The phone number is given when the order is placed. Therefore, the number would have been given to Robin McBeth.

UPS called the McBeth's number sometime between 8 and 9 A.M. on Monday, March 19. Homer McBeth answered the phone as was customary. He offered to get a message to Hamer and was told that it wasn't necessary. Homer told UPS that Hamer was moving and as far as he knew she didn't have a phone as yet. That evening (Monday the 19th) Homer told Hamer that UPS had called. Hamer then decided to stay at the McBeth's Monday night in case UPS called on Tuesday morning. The only number provided UPS was the McBeth's number.

On Tuesday, March 20, UPS called Hamer's new phone number (673-6473) instead of the number provided them by Hamer, the one at which she could have been reached. UPS documented that calls were made at 6:40 A.M. and 7:20 A.M. This documentation is not credible in that the new number was not available until either 9:00 A.M. on Tuesday or at the time the Northwestern Bell business office opened, both after the times of the alleged calls. It is not plausible that the call to find out the number was made on Monday because UPS would not know whether or not they needed Hamer until Tuesday morning.

On Wednesday morning UPS again tried to contact Hamer at her new phone number. She did stay in her new location on Tuesday night, but did not hear the phone or had not plugged it in the jack. In any case, she did not receive the UPS call. She had not, however, given UPS her new phone number. That afternoon, March 21, she became concerned because she had not received a call from UPS and also wanted to request Friday off for a court appearance. She then called UPS and was told that she was terminated. UPS would not consider Hamer's reasons for not receiving their calls. The act of termination was final.

7. Employees at UPS were assigned work according to seniority. Utility drivers with the 10% least seniority were considered on-call and were posted on Friday. "Posted" meant that they were put on a weekly schedule on Friday for the following week. This occurred when work was left after the more senior employees were assigned or absent. Each morning after pre- loading it was determined whether or not additional employees were needed and if so, the "on-call" (10%) employees were called according to their seniority dates. (T641) When called they were given an hour to get to work. If they did not receive a call, they were considered on lay-off for unemployment benefits. If it was known on Friday that an on-call driver would definitely be needed on Monday, they would be told on Friday. Otherwise, they would normally be called the morning they were needed. It was not the responsibility of the on-call employee to call in. Hamer was not told on Friday to report on Monday, March 19. (T675) (T168-174)

8. The attempts to reach Hamer were documented on March 20 and March 21. The memos were signed, witnessed and notarized. It is noted that the witnesses did not sign before the notary public. This procedure was not only atypical, but was the only time such procedure was ever followed. Furthermore, Hamer was the only employee ever terminated for absenteeism except for one male terminated after this complaint was served, actually in January 1988. (T294, 518) There were also two additional memos, both to Jerry Millard, center manager, dated 3/21/84. One was handwritten and signed with Carnahan's name, but not by Carnahan (C's Exh. 9). The other was written by Carnahan and signed by him. Both memos recited the same events with some exceptions. (R's Exh. U) It is not in evidence who wrote the memo which, was signed Carnahan, but not by Carnahan. (Exhibit 9).

9. Hamer's schedule for the month prior to the week of termination was:


Week Ending

2-4-84 Disability all week

2-11-84 Disability 1 day; lay off 1 day worked 3 days

2-18-84 Request off 1, worked 4

2-25-84 Request off 1, worked 4

3-3-84 Request off 1, worked 1, lay off 3

3-10-84 Worked 5

3-17-84 Monday lay off, Tuesday worked, Wednesday lay off, Thursday and Friday worked

10. Article 3, Section 3 of the union contract provides in part as follows:

The seniority of an employee shall be considered broken for the following reasons, and the employee shall be considered terminated:

(d) If the employee fails to report to work for three (3) consecutive working days and does not properly notify the company at the beginning of his (sic) starting time on the third (3rd) day.

11. Larry Carnahan, an employee for UPS beginning in 1969, became a supervisor in 1980 and was supervisor during the time at issue. In 1982, Carnahan also documented Hamer's unavailability and then filed "Individual Personnel Reports" on Hamer on 8-25-82, 8-26-82, and 8-27-82. (R's Exh. L, M, N) Carnahan then sent a memo to Ver Steeg, center manager, dated 9- 9-82, indicating that he had reached Hamer and told her to be at work on 9-13-82 (R's Exh. 0) Hamer did not sign any of the reports and memos nor did Carnahan remember talking with her about them (T493) It is noted that the procedure set forth in Respondent's Exhibit 0, memo that Carnahan had called Hamer and told her to be at work on 9-13-82, was not customary procedure at UPS. (T498)

12. Aaron Ver Steeg, employee of UPS for 18 years (April 64- June 83) was management for about 12 years including center manager at Ottumwa from 1979 to 1983. On August 27, 1982, Ver Steeg, as center manager, sent Hamer a letter informing her that she was considered to have abandoned her job as there was no contact for 5 consecutive working days. It was Ver Steeg that terminated Hamer in 1982 for job abandonment when she failed to report on a specific scheduled work day. He did this without the usual upper level administrative approval. He also agreed to the reinstatement of Hamer. It was not his intention to terminate Hamer, but rather to make her realize the importance of being available for work (T 175). On September 7, 1982, a letter was sent to Hamer by Glen Schmidt, Division Manager, as a Final Warning letter, informing her that an agreement had been reached that she would return to work with full seniority rights. (R's Exh. Q, R, S)

The union contract provided that warning letters were only to remain in the personnel file for nine months. (T 176). Letters actually remain in the file but have no validity after nine months.


13. Article 17 of the union contract provides:

The employer shall not discharge nor suspend any employee without just cause, but in respect to discharge or suspension shall give at least one (1) warning notice of a complaint against such employee to the employee in writing and a copy of the same to the union

The warning notice as herein provided shall ... not remain in effect for a period of more than nine (9) months from date of said warning notice. (R's Exh. LL).

It is noted that Hamer's warning letter was dated September 7, 1982. (R's Exh. R). This letter specifically states: "This is a Final Warning Letter." The letter of agreement which Respondent declares is not a warning letter is dated September 2, 1982. That agreement provides:

 

14. Herschel Farmer, currently the Iowa district labor relations manager for UPS and successor to Taylor the manager during the time at issue, was package division manager when Hamer was terminated. Farmer consulted Taylor on that termination and said that Taylor had considered the 1982 termination in denying the 1984 grievance. Millard was the one that relayed the basis for the termination to Farmer. Millard, however, did not consider the 1982 termination. (T623,668)

15. Hamer's reaction to being fired was "total shock, terror." (T87-88). At the time of termination, she owned four vehicles. Two were repossessed, one she had to sell. She had to give up the house she just moved into and she lived for about four months in her station wagon. (T 89).

16. In 1982, while working for UPS, Hamer earned $21,110.00 plus $1113.00 in unemployment benefits. (C's Exh. 3). In 1983, Hamer earned $15,243.00 plus $565.00 in unemployment benefits (C's Exh. 4). It is noted that during 1983 and 1984, Hamer missed several weeks because of disability. (T 80) At the time of termination, Hamer was paid $13.97 an hour (T 12). Hamer also received medical/dental benefits while working for UPS. She also accumulated vacation time. (T 148-149) Counsel stipulated to the accuracy of comparative figures: Steven White, a male UPS employee with the same seniority date, (February 27, 1980) received a salary from UPS of $31,248.92 in 1984, $33,983. 10 in 1985, and $36,095.62 in 1986. (T 224).

17. After her termination on March 21, Hamer applied for unemployment benefits and was granted those benefits in the amount of $4304.00. (T 35)

18. Since her termination by UPS, Hamer worked for Magna Dry and earned $373 in 1984. (T 37). In 1985, she earned $1,074 plus $766. In 1986, Hamer did not earn enough to require filing a tax return. (T 93). In 1987, she earned $2,664 from Sherwin-Williams and $16,811 from Lanter Courier (T 41).

At the time of the Hearing, Hamer was still employed by Sherwin William, although laid off. She was working part time at $4.50 per hour. She also was working for Lanter and getting paid at the rate of 25 cents per mile plus $1.00 per hour while on duty, but not driving. She was required to pay for her own expenses and furnish the vehicle.

19. Attorney Detlie, private counsel for Hamer, provided professional services for Hamer in the civil rights suit up to the time of this Hearing in the amount of 75.7 hours. He submitted a supplemental itemization on March 21, 1988, for 68.15 additional hours, plus $151.00 additional expenses. Eight hours were duplicative of work done by the Assistant Attorney General. (T387)(T 225, C's Exh. 8). Detlie also charged Hamer $273.00 for representing her before the Department of Job Service.

20. UPS had approximately 2400 employees in the State of Iowa with about 560 delivery drivers. UPS has its eastern district office in Des Moines and approximately 21 delivery centers, including the one in Ottumwa.

21. Employees who are on *layoff" are employees for whom no work is anticipated for the following week. Therefore the "on- call" employees are more likely to be called first. The record for the week ending 3-17-84, showed Hamer "on-call" with "lay-off" crossed off. Actually, she was on lay-off 3-12 and 3-14. The record of the week in question has not been made available. (R's Exh. GG and NN) If Hamer had been on "lay-off" instead of "on- call", her failure to respond would not have been "no call/no show* according to Farmer, current labor relations manager. (T 838-839) (T642-643). There were no written rules nor union contract provisions requiring on-call drivers to be at their phones. It was understood calls would come in between 7 and 8:00 A.M. if drivers were needed. Drivers who wanted to work would make themselves available. The procedure was to call the next person on the list and if they couldn't get a hold of that one, they'd call the next one and just go down the list.

22. The decision was made to terminate Hamer on March 19, 1984. That is why the memo was sent to Al Taylor on 3-19-84. (T501). Ver Steeg believed Carnahan when he said they were going to "nail Hamer for no call/no show" and felt an injustice was about to be done to Hamer. Discipline at UPS was a 4-step system: verbal warning, written warning, suspension and termination. This procedure was not followed in Hamer's termination.

Finding an on-call employee not at their phone, especially if called just prior to start time, was not unusual. Nor was it unusual to not reach someone three days in a row. (T 190) Ver Steeg never had trouble reaching Hamer after she received the warning letter in 1982. (T 191)


The phrase "no call/no show" means an employee is scheduled for work and doesn't show or call that they cannot show. The responsibility for calling an on-call employee was on UPS.

SUB-ISSUE #I-WASHER/PORTER JOB

1. There were two washer/porter positions, one was for 8 or more hours, the other for 5 hours. Hamer usually worked the full time position. Jerry Murphy held that job during the time at issue and when he had to be off for surgery, January 1984, it was necessary to replace him. (T 107).

2. According to Wendell Gray, union steward, there is no job opening and a bid cannot be posted in case of injury. Management has a right to assign a person to that job. (T 308-309) Management does not have to go according to seniority on such an assignment. Qualification for the job is the important consideration. MILLARD, center manager, however, said he did go by seniority. Hamer was qualified and experienced. Her comparative seniority is not in evidence.

3. The procedure for a driver who anticipates being on call or laid off is to notify the center manager on Friday that they want to have the washer/porter position for the following week. (T 649) It is noted, however, that on March 30, 1984 (after Hamer's termination) Millard sent a memo to Taylor establishing the procedure for assigning personnel to the washer/porter position. (R's Exh. EE)

4. When Murphy had the injury and was off for a considerable period of time, his position was filled by laid-off delivery drivers. The job was not posted. (T 65 1) The job was not up for bids because the injured employee was on workers compensation with the job held open for his return.

5. Hamer did work as delivery driver for most of the wee in issue except when she was off on disability.

6. On March 24, 1984, Hamer filed a grievance based on a violation of the union contract stating that UPS assigned employees to fill that vacancy with less senior employees. That grievance was denied for being untimely, i.e., Hamer had been terminated on 3-21-88. (R's Exh. W and X), (T 746)


SUB-ISSUE #2 - SEX HARASSMENT

1. Around Christmas time in 1983, Jerry Millard, center manager, advised Hamer that getting pregnant at UPS would cause problems (T 55).

2. In 1981 or 1982, prior to the 180 day limit of this complaint, a co-worker, Merle Overturf, shoved Hamer into a storage area with the lights out. She tried to get out, but the door was being held from the outside. When it was finally opened, three coworkers were standing by the door: Steve Buckley, Charles Popelka and Dick Bates. Hamer did not report the incident to management. (T 59- 66)

3. Drivers were required to wear uniforms. The male drivers had a locker room. The female drivers changed in their restroom. Both were located upstairs over the office area. All drivers started at approximately the same time and, therefore, changed into their uniforms at about the same time in the morning. Males would sometimes try to push the women's door open as they went by. At times, when they heard females coming up the stairs, males would open the swinging door to their locker room while they were changing clothes. They hollered invitations to the females to come and help them. Sometimes when both sexes were going up the stairs, the males would make sexist remarks or whistle. Some males made suggestive movements and sexual remarks during check-in. Hamer reported some of these incidents to Larry Carnahan, supervisor. Nothing was done.

4. Sometime in 1983, while Hamer was loading her truck, Jerry Millard, came in and grabbed her from behind and pushed his body against hers from behind. She screamed and ran out telling Ver Steeg, then center manager, to "get that dirty pervert out of my truck." (T 83-84) Ver Steeg received complaints from female employees about wolf whistles and comments from the males. He also witnessed the incident Hamer cited with Jerry Millard while she was loading her truck. He did not take any action. It is noted that Millard is the person who relayed the basis for Hamer's termination to upper management.

5. Wendell Gray, delivery driver for UPS, did not notice any different treatment of the females; nor did Hamer file any grievances with him while he was union steward.

6. Connie Moss, delivery driver for UPS, stated that most of the guys teased her all of the time, but she didn't believe they did it maliciously. She admitted that they called her "Honey* and that is her nickname. She didn't experience any problems with the use of the restroom. It did not have a lock on for years; and, she requested that a lock be installed around 1980-81. Moss was the first female driver at UPS, Ottumwa. She didn't experience any difficulties going up the stairs to the restroom because she always let the men go up first. (T 324) Moss said that males made comments to her about going up and changing clothes together. (T 326) She did not find such comments offensive. (T 327) Moss stated that she felt that her problems meeting the standards were related to her being female. (T 329)

Moss admitted that remarks were made by the nude drivers, but it didn't bother her "all that much," that remarks are made that you have to ignore; that if there was anything said that was out of line, she'd tell them to knock it off-, and that most of the time, they'd knock it off. (T 335-336). She identified Popelka, Haas, and Overturf as guys who would be most involved in the "playfulness." (T 340)

7. Steve Buckley, delivery driver for UPS for about 12 years and a current employee, denies ever putting his arms around Hamer, making comments to her going up the stairs to the restroom. or witnessing anyone else doing so, making or witnessing sexual advances toward Hamer during check in, ever saying anything sexually based to Hamer, hearing any comments about pregnancy, knowing anything about the closet incident, and denies the occurrence of wolf whistles. Buckley admitted he might be considered in a group that "joked around." He also agreed that Overturf and Bates would be included. It is noted that a UPS female clerk was present in the Hearing room and that she was the girl friend of this witness. (T399)

8. Merle Overturf, delivery driver currently and employee of UPS for 23 years, denied whistling and the ability to whistle; denied pushing Hamer in the storage room; admitted being a participant in practical jokes; and generally denied allegations of sexual harassment. (T. 316) It is noted that the wives of UPS employees, Dick Bates, Mike Rayburn and Dwayne Quick, sat in on the Hearing. All were close friends of Overturf. (T 440)

9. When Ver Steeg started as supervisor for UPS, there were no female drivers. He was, in fact, opposed to female drivers. (T 177) Hamer was promoted to driver under Ver Steeg although he was opposed to that promotion. He was under pressure from his supervisor to hire females. (T 215)

Ver Steeg said that he believed the women were getting tired of the male comments and wolf whistles. Ver Steeg admitted that he was opposed to female drivers and allowing females to take pregnancy leave because the males didn't have the same right, that Millard felt the same way and both of them got upset when a female called in sick due to pregnancy. (T 186-189)

Ver Steeg responded to female complaints about male conversations by talking with the males. He remembers talking to Bates, Buckley and Overturf. Nothing was put in their personnel files because Ver Steeg didn't consider the action disciplinary, nor a problem, therefore, it ended there. (T 201-208)

Ver Steeg gave Hamer the name "Silvertongue" because when she became angry, she was quite vocal, and that was usually when male employees were teasing her. (T 210)

10. Cheryl Sandifer, utility driver for UPS for 9 years and currently an employee, had two children during her employment. Except for Ver Steeg, no one commented on her state of pregnancy. A male employee did (Merle Overturf) ask to come in the restroom with her but that happened only once. She didn't report the incident, concluded it was just teasing. Sandifer did remember wolf whistles in the morning and that Hamer had told her about the males putting their arms around her. (T 243) Sandifer was allowed to take layoff without compensation whenever she wanted to as long as there was a junior male that wanted to work. (T 195)

Carnahan recalled remarks made to Sandifer such as: "Geez, you're pregnant again." (T 553) He recalled remarks by females such as "Merle's up to his old tricks again" or "someone is doing something over" but he just didn't have time to be there and watch the operation. He would have reported anything serious.

Carnahan admitted that there may have been complaints by the females about suggestive remarks by the males. His response to the question was "They might have made a remark about it or something like that, but what do you do? Get the guys out of the office where the coffee pot is or away from the coffee pot or what ... " ( T 594)

12. Millard denies hearing any sexually-oriented comments to female employees, comments about pregnancy to Hamer, the incident in the truck when Hamer called him. a pervert, etc. (T 654- 655, 659, 660, 670)

13. Richard Bates, employee of UPS for 21 years and currently a driver, doesn't remember any wolf whistles, never observed any sexual advances to Hamer nor remembered any closet incidents, didn't remember locker room incident, nor did he make sexual advances toward Hamer, or hear any comments regarding pregnancy.

14. Charles Popelka, a delivery driver for UPS for 11 years and a current employee, denied any knowledge of the closet incident with Hamer or any sexual words or contact. He denies ever hearing males whistle at Hamer or any of the female employees or making comments about pregnancy.

15. Janice Smith, part-time employee of UPS as washer/ porter, denies having any difficulties relating to the restroom, comments as to pregnancy, hearing any sexual comments. She had been picked up and thrown into the porter closet by a couple of center managers, but did not know anything of the closet incident with Hamer. There were two porter closets, one under the stairway and one in a storage room which was located on the left as you entered the building on the west. She was thrown in the storage room closet and the door was held closed so she couldn't get out. Smith acknowledged that wolf whistles occurred at UPS.

16. Kevin Haas, current driver for UPS and employee for 10 years, denied seeing anyone making sexual advances to Hamer, didn't recall any wolf whistles, denied hearing comments to females from the male locker room or comments regarding pregnancy, has no recall of Hamer being pushed into the closet, was unaware of any incidents of other employees being locked in the storage closet.

17. Glen Schmidt, former division manager including the Ottumwa area (1979-1984), visited the centers about once a month. On those visits, he talked with management and drivers. No female drivers complained to him about being treated differently. He could not remember any case of termination for job abandonment except that of Hamer. Schmidt is the person who terminated Ver Steeg.

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