Sheryl J. Wilson, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Western Area Region), Agency.

Equal Employment Opportunity CommissionFeb 15, 2001
01990803 (E.E.O.C. Feb. 15, 2001)

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.