01990803
02-15-2001
Sheryl J. Wilson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Western Area Region), Agency.
Sheryl J. Wilson v. United States Postal Service
01990803
February 15, 2001
.
Sheryl J. Wilson,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Western Area Region),
Agency.
Appeal No. 01990803
Agency No. 4E-800-0373-97
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning her complaint 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. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405.<1> For the following reasons, we affirm the
agency's finding of no discrimination.
The record reveals that during the relevant time, complainant was employed
as a Manager of Customer Services, EAS-18, at the Altura Station,
one of the six stations comprising the Aurora Post Office's district
in Aurora, Colorado. Complainant alleged that she was subjected
to a hostile work environment and disadvantaged as to the terms and
conditions of her employment because of the Postmaster's favorable
treatment of subordinate female employees with whom he was allegedly
sexually involved. Complainant sought EEO counseling and subsequently
filed a formal complaint on December 16, 1997. At the conclusion of the
investigation, complainant was informed of her right to request a hearing
before an EEOC Administrative Judge but did not do so. The agency issued
a final decision from which the instant appeal was taken. On appeal,
complainant alleged that the agency's investigation was inadequate. The
Commission agreed and, via interim decision dated November 1, 2000,
ordered the agency to complete a supplemental investigation.
The Commission's Guidelines on Discrimination Because of Sex provide
that where employment opportunities or benefits are granted because of
an individual's submission to the employer's sexual advances or requests
for sexual favors, the employer may be held liable for unlawful sex
discrimination against other persons who were qualified for but were
denied the employment opportunity or benefit. 29 C.F.R. � 1604.11(g).
The Commission has recognized that sexual favoritism in the workplace
which adversely affects the employment opportunities of third parties may
constitute harassment.<2> See EEOC Policy Guidance on Employer Liability
under Title VII for Sexual Favoritism, No. 915-048 (January 12, 1990).
If favoritism based upon the granting of sexual favors is widespread in
a workplace, employees who do not welcome this conduct can establish
a hostile work environment in violation of Title VII regardless of
whether any objectionable conduct is directed at them and regardless of
whether those who were granted favorable treatment willingly consented
to the conduct. Some factors that could be considered in determining
whether a hostile environment is established are the number of incidents
of favoritism, the egregiousness of the incidents, and whether or not
other employees in the office were made aware of the conduct.
Based upon review of the entire record, the Commission finds that
complainant has not proven, by a preponderance of the evidence,
that the Postmaster was engaged in making sexual advances towards or
requesting sexual favors from his subordinate employees. In reaching
this conclusion, we note that thirty-three statements were taken from
a combination of both male and female craft and management employees at
six stations. Twenty-three of these employees attested to the perception
that the Postmaster was romantically involved with subordinate female
employees. These employees admitted that the perception was based on
"rumors," "gossip," and "hearsay," and that neither they nor those
who passed on such information had directly witnessed the romantic
involvement. Only one employee attested to witnessing an incident
wherein he walked into an office and found the Postmaster engaged in an
"intimate embrace" with a subordinate employee. This incident was never
referenced by the twenty three employees whose perception was based on
rumor and hearsay. The Postmaster, who denied that he had ever had
a romantic relationship with any of the Aurora district employees,
described this incident as a "hug." The record does not contain
an affidavit from the subordinate employee. There is insufficient,
credible evidence of record to permit the Commission to determine whether
this was an "intimate embrace"or a "hug," thus leaving the nature of
the Postmaster's conduct in equipoise. See LaMacchia v. Department of
Defense, EEOC Appeal No. 01976971 (December 12, 1999). Furthermore, the
Commission declines to credit statements based on what one employee heard
from another employee when there is no evidence that any of the rumored
conduct actually occurred. Accordingly, we find that complainant has
not proven, by a preponderance of the evidence, that the Postmaster was
engaged in making sexual advances towards or requesting sexual favors
from his subordinate employees, and thus, complainant's claim of sexual
favoritism fails.
Therefore, after a careful review of the record, including complainant's
contentions on appeal and arguments and evidence not specifically
addressed in this decision, we affirm the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. 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. If you
file a request to reconsider and also file a civil action, 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
February 15, 2001
__________________
Date
1 On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 The Commission has found that isolated instances of preferential
treatment based on consensual romantic relationships, spousal ties
or friendship may be unfair, but do not constitute discrimination
in violation of Title VII because both males and females are equally
disadvantaged for reasons other than their gender.