01A03287
07-17-2002
Deborah F. Cavanaugh, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Deborah F. Cavanaugh v. United States Postal Service
01A03287
July 17, 2002
.
Deborah F. Cavanaugh,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A03287
Agency No. 1J-424-0001-99
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final decision in the above-entitled matter.
Complainant filed an EEO complaint alleging that the agency discriminated
against her on the basis of sex (female) in violation of Title VII
of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �
2000e et seq., when her first level supervisor (S1) (1) terminated her
badge access to the Human Resources office, (2) denied her request for
annual leave, and (3) denied her request for a one hour schedule change.
Specifically, complainant alleged that she was subjected to sexual
harassment because S1's wife, who was also an agency employee, received
preferential treatment.<1>
S1 stated (1) he deactivated complainant's badge access, and allowed her
manual access through him, to ensure the safety of employee personnel
files, (2) complainant's vacation leave request was denied for business
reasons, i.e., complainant had recently returned from three weeks of
leave, there was a large amount of work to be completed, and she was the
only one who could complete it, and an employee trip had been scheduled
for the same time, (3) he informed complainant that she could use one
hour of leave rather than start work one hour earlier because he did
not have work for complainant to do at the adjusted start time.
The agency completed an investigation of complainant's complaint
and informed complainant of the right to elect a hearing before
an EEOC administrative judge or an immediate final agency decision.
Complainant elected the latter. The agency issued a decision, finding no
discrimination. The agency found that complainant failed to show a prima
facie case of discrimination because she did not show that similarly
situated employees who are outside of her protected class were treated
more favorably than she. The agency found further that complainant failed
to show that the legitimate, nondiscriminatory reasons it articulated
for its actions were pretextual.
We find no discrimination. First, assuming that S1's wife did receive
preferential treatment, such action does not violate Title VII where
said treatment was based upon a consensual romantic relationship rather
than one coerced in exchange for a job benefit. See Policy Guidance on
Employer Liability under Title VII for Sexual Favoritism, EEOC Notice
N-915-048 (January 1, 1990). Essentially, complainant was treated
differently for a reason other than her sex � the spousal relationship
between S1 and his wife. Id. Second, complainant failed to show that
the legitimate, nondiscriminatory reasons articulated by the agency
for its actions were pretextual. And to the extent that we find that
complainant was not harassed based on her sex, we also find that she was
not constructively discharged. See McKinney v. U.S. Dep't of Agriculture,
EEOC Petition No. 03980082 (December 4, 1998) (stating that �a finding
of discrimination is intrinsic to a claim of constructive discharge�).
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
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
July 17, 2002
__________________
Date
1Complainant, in the record, raised the
issue of constructive discharge. Complainant stated, �[T]he unbearable
working conditions made it necessary and imperative that I resign when
I otherwise would have stayed.�