0120055958
05-10-2007
Brenda A. Riley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Brenda A. Riley,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200559581
Agency No. 1K201003404
Hearing No. 120A50127X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's August 4, 2005, final order concerning her equal
employment opportunity (EEO) complaint alleging 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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
Complainant alleged that the agency discriminated against her on the
bases of sex (female) and age (D.O.B. 10/20/56) when: (1) on December 1,
2003, her request for a day off was denied; and (2) on January 6, 2004,
she was told that she would not be hired as a Transitional Employee.
The record reflects that in January 2004, the agency was authorized to
hire 12 transitional employees. The agency hired 11 individuals from
its complement of 18 casual employees.2 Complainant, a casual employee
was not hired. Complainant maintains that sexual favoritism was shown
to at least three female employees who were hired because they were
involved in relationships with supervisory personnel.
Following a two day hearing, an EEOC Administrative Judge (AJ) found
that the evidence suggested that there was only one remote incident that
suggested possible sexual favoritism. Thus, the AJ found that complainant
failed to establish the existence of widespread sexual favoritism.
Having rejected complainant's sexual harassment claim, the AJ then
considered whether complainant could establish a non-selection claim.
The AJ found that complainant failed to establish her claim because she
failed to show that her qualifications were significantly superior to the
qualifications of the selectees. Finally, the AJ found that complainant's
denial of leave claim was moot because complainant stipulated that she was
not seeking compensatory damages and because he found that complainant's
termination was due to nondiscriminatory reasons.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the
Commission to affirm the final agency action. 3 The Commission finds
that the evidence does not support complainant's contention that she
was discriminated against based on sex and age. In fact, the evidence
shows that the overwhelming majority of persons hired were both female
and in close proximity to complainant's age. Moreover, we find that
complainant failed to show that she was more qualified than those selected
as testimony was taken from two supervisors who indicated that complainant
had work performance problems.
The Commission also agrees that the record fails to support complainant's
claim that at least three hiring decisions were influenced by a
policy that showed favoritism to female employees who were involved in
relationships with supervisory personnel. The evidence shows that one of
the women that complainant alleged received favoritism was hired before
she became involved with and married to a supervisor. Another female
employee that complainant alleged was shown favoritism was not supervised
by anyone involved in the hiring decision and there was no evidence that
she and her supervisor were involved. Finally, the record indicates that
the last person complainant alleged was shown favoritism was involved
with a supervisor and he gave input regarding her hiring. The Commission
has found that a showing of widespread favoritism can establish a sexual
harassment claim. See Policy Guidance on Employer Liability under Title
VII for Sexual Favoritism, No. N-915.048 (January 12, 1990). Here,
however, the AJ found that this one incident was not enough to show
widespread sexual favoritism or to support a claim of sexual harassment.
We agree. Finally, we also agree that complainant's claim that she was
denied leave is now moot because complainant is no longer employed by
the agency and she did not request compensatory damages. Accordingly,
we find that the Administrative Judge's ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the
evidence, is supported by substantial evidence in the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
___5/10/07________________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
2 The record shows that there were 11 casual employees who were hired
as transitional employees. The record also indicated that 64% of these
employees were female and 36% were male. The average age of those hired
was 45.
3 EEOC Regulation 29 C.F.R. � 1614.405(a) provides that 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). A finding regarding
whether or not discriminatory intent existed is a factual finding. See
Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).
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01A20055958
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120055958