Brenda A. Riley, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 10, 2007
0120055958 (E.E.O.C. May. 10, 2007)

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