01983773
03-19-1999
Jan L. Fleming, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Jan L. Fleming v. Department of Agriculture
01983773
March 19, 1999
Jan L. Fleming, )
Appellant, ) Appeal No. 01983773
v. ) Agency No. 931220
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
DECISION
The Commission accepts appellant's timely filed appeal from a final
agency decision ("FAD") concerning her complaint of discrimination in
violation of Title VII as amended, 42 U.S.C. �2000e et seq. See EEOC
Order No. 960.001. In her complaint, appellant alleged that she was
discriminated against based on her sex when she was not selected for the
position of Supervisory Food Program Specialist, GS-12 (the "Position").
For the reasons set forth below, the FAD is AFFIRMED.
Appellant, a Compliance Investigator, GS-11, and two other female
employees were on the promotion register. The Acting Director, Field
Operations, who interviewed the candidates, averred that he chose the
selectee because, as a Food Program Specialist, GS-11, she was more
familiar with the duties of the Position and because she seemed more
amenable to training new agency and state agency personnel. After
learning of her nonselection, appellant timely sought EEO counseling,
and her instant complaint was accepted and investigated by the agency.
After appellant failed to request a hearing, the agency issued its FAD
finding no discrimination.
In her complaint, appellant contended that the selectee was chosen because
she had a consensual romantic relationship with the Deputy Regional
Administrator (the "DRA") and because of the DRA's high level position,
the Acting Director was motivated to favor the selectee. Thus, while
appellant acknowledged that she was not subjected to sexual advances
and did not claim that favoritism based upon the consensual granting
of sexual favors was widespread in the workplace, she argued that even
an isolated instance of such favoritism constituted sexual harassment.
Appellant also contended that she was more qualified than the selectee.
In its FAD, the agency noted that the DRA played no part in the
selection process and found that the Acting Director's decision was
not influenced by the selectee's relationship with the DRA. In any
event, the agency noted that the Commission and the courts have 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. See, e.g., EEOC Policy Guidance on Employer Liability
under Title VII (1990); DeCintio v. Westchester County Medical Center,
807 F.2d 304 (2d Cir. 1986), cert. Denied, 108 S.Ct. 89 (1987); Miller
v. Aluminum Co. Of America, 679 F. Supp. 495, aff'd mem., 856 F.2d 184
(3rd Cir. 1988). Insofar as appellant alleged that she was more qualified
than the selectee, the agency was not persuaded that she established,
by a preponderance of the evidence that the Acting Director's proffered
explanation for the selection decision was unworthy of credence.
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
On appeal, appellant argues that the Acting Director must have been aware
of the DRA's preference for the selectee and, therefore, the consensual
romantic relationship between the selectee and the DRA constituted sexual
harassment.
However, after a careful review of the entire record, the Commission finds
that the FAD properly addressed and analyzed appellant's allegation.
It is, therefore, the decision of the Commission to AFFIRM the FAD in
this matter.
STATEMENT OF RIGHTS-ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
March 19, 1999
________________ ___________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations