Kimberly S. Roscoe, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 3, 2001
01A04449_r (E.E.O.C. Dec. 3, 2001)

01A04449_r

12-03-2001

Kimberly S. Roscoe, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Kimberly S. Roscoe v. United States Postal Service

01A04449

December 3, 2001

.

Kimberly S. Roscoe,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A04449

DECISION

Complainant timely initiated an appeal from the agency's final decision

concerning her equal employment opportunity (EEO) 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. Complainant claims that

she was discriminated against on the bases of race (Black) and sex

(female) when:

(1) On November 27, 1998, December 24, 1998, and December 31, 1998,

complainant was denied annual leave;

On January 11, 1999, complainant received a seven day suspension for

being AWOL on December 31, 1998;

Under the March 2, 1999 Grievance Settlement Agreement, complainant was

not reimbursed for all lost wages, and the agency did not comply with

the settlement agreement in a timely manner; and

Another employee who had a personal relationship with complainant's

manager was given special treatment, and, had complainant had a personal

relationship with complainant's manager, the claims of discrimination

articulated in claims 1 through 3, above, would not have occurred.

In its decision, the agency concluded that complainant had not been

discriminated against when she was denied annual leave or received a

seven day suspension. For the reasons described below, the Commission

affirms the agency's final decision.

The record reveals that during the relevant time, complainant was employed

as a Flat Sorter Machine Operator at the agency's Gary, Indiana Processing

and Distribution Center. Believing she was a victim of discrimination,

complainant sought EEO counseling and subsequently filed a formal

complaint on March 23, 1999. At the conclusion of the investigation,

complainant was informed of her right to request a hearing before an EEOC

Administrative Judge or alternatively, to receive a final decision by

the agency. When complainant failed to respond within the time period

specified in 29 C.F.R. � 1614.108(f), the agency issued a final decision.

In its final decision, the agency did not address all claims raised by

complainant in her complaint. On appeal, complainant contends that the

agency failed to consider her claim that she was discriminated against

when the March 2, 1999 Grievance Settlement Agreement was not complied

with in a timely manner and when she was not compensated for all wages

lost during her suspension. The Commission has defined this claim

as claim 3, and concludes that the agency has, in effect, dismissed

this claim.

Additionally, the agency did not address complainant's claim of sexual

harassment; therefore, the Commission concludes that the agency has,

in effect, dismissed this claim as well. Complainant asserts that

she was sexually harassed because another employee who had a personal

relationship with complainant's manager was given special treatment.

Complainant contends that if she had a personal relationship with her

manager, her requests for annual leave would have been granted, she

would not have been suspended, and she would have been reimbursed for

lost wages. Upon examination of complainant's EEO Counselor's report and

her complaint, the Commission finds that complainant did raise an issue

of sexual harassment. Therefore, the Commission considers complainant's

claim of sexual harassment, and has defined this claim as claim 4.

Claim 1, in part, and claims 2 and 3, are properly dismissed on

procedural grounds. Regarding claim 1, complainant admits that on

November 25, 1998, she was informed that she had been approved for

annual leave on November 27, 1998. Therefore, the Commission finds

that complainant failed to identify how she was harmed on November

27, 1998. The portion of claim 1 alleging denial of annual leave on

November 27, 1998, is dismissed for failure to state a claim, pursuant

to 29 C.F.R. � 1614.107(a)(1). Complainant's claims of denial of annual

leave on December 24, 1998 and December 31, 1998, will be considered on

their merits.

Complainant entered into a Grievance Settlement Agreement with the agency

on March 2, 1999. Pursuant to that agreement, the suspension issued on

January 11, 1999, and the AWOL which triggered complainant's suspension,

were removed from all files and records. Under the settlement agreement,

management agreed to compensate complainant 40 hours of pay at the regular

rate for the time served off of the clock between January 30, 1999 and

February 5, 1999. The Commission dismisses claim 2 because it was settled

by the settlement agreement when the suspension and AWOL were removed

from her files and records and she was compensated for her lost wages.

Claim 3, complainant's claim that she was not fully reimbursed pursuant

to the settlement agreement and that the agency did not promptly comply

with the settlement agreement, constitutes a collateral attack on a

grievance proceeding. See Wills v. Department of Defense, EEOC Request

No. 05970596 (July 30, 1998); Kleinman v. United States Postal Service,

EEOC Request No. 05940585 (September 22, 1994); Lingad v. United

States Postal Service, EEOC Request No. 05930106 (June 25, 1993).

The proper forum for complainant to have raised her dissatisfaction with

the outcome of the grievance process was within the negotiated grievance

process itself. The claim is a collateral attack on the outcome of

another administrative dispute resolution process; therefore, it fails

to state a claim. See 29 C.F.R. � 1614.107(a)(1).

The Commission reaches the merits of the remaining claims, claim 1, in

part, and claim 4. Applying the standards set forth in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), the Commission disagrees with the

agency's conclusion that complainant failed to establish a prima facie

case of sex discrimination regarding claim 1, but agrees that complainant

failed to establish a prima facie case of race discrimination.<1>

In reaching these conclusions, we note that under McDonnell Douglas,

complainant carries the initial burden of establishing a prima facie

case in a Title VII case by showing that: (1) complainant is a member

of a protected group; (2) she was subjected to an adverse employment

action; and (3) that she was treated less favorably than other similarly

situated employees outside of her protected group. We note that it is

not necessary for complainant to rely strictly on comparative evidence in

order to establish an inference of discriminatory motivation necessary to

support a prima facie case. See O'Connor v. Consolidated Coin Caterers

Corp., 517 U.S. 308, 312 (1996); EEOC Enforcement Guidance on O'Connor

v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002, n. 4

(September 18, 1996).

A review of the investigative file shows that a male employee was granted

a schedule switch so that he was no longer scheduled to work on December

24, 1998. Complainant was a member of a protected group (female).

Complainant was subjected to an adverse employment action when she was

denied annual leave, and, complainant has shown that someone outside

of her protected groups was granted the day off while she was denied

annual leave. Therefore, the Commission concludes that complainant has

established a prima facie case of discrimination on the basis of sex.

The burden of production now shifts to the agency to articulate a

legitimate, nondiscriminatory reason for not granting complainant annual

leave on December 24, 1998 and December 31, 1998. In its decision,

the agency states that the male employee who was granted the day off

on December 24, 1998, was allowed to do so because he worked in the

Priority section during the Christmas season, and, unlike complainant,

he was needed to process the anticipated heavy volumes on December 21,

1998, his non-scheduled day. He was permitted to select a different day

off in exchange for working on his non-scheduled day. The Commission

finds that the agency met its burden of production by articulating a

legitimate, nondiscriminatory reason for why an individual outside of

complainant's protected class was permitted to switch his day off when

complainant was not granted annual leave. Furthermore, we find that

complainant has failed to show that the agency's action of denying

complainant annual leave on December 24, 1998 and December 31, 1998,

was motivated by prohibited discrimination on the bases of sex or race.

Finally, we find that complainant has failed to show that she was

a victim of harassment. To establish a prima facie case of hostile

environment harassment, the complainant must show that: (1) she belongs

to a statutorily protected class; (2) she was subjected to harassment in

the form of unwelcome verbal or physical conduct involving the protected

class; (3) the harassment complained of was based on the statutorily

protected class; and (4) the harassment affected a term or condition of

employment and/or had the purpose or effect of unreasonably interfering

with the work environment and/or creating an intimidating, hostile,

or offensive work environment. Humphrey v. United States Postal

Service, EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. �

1604.11. Evidence of the general work atmosphere, involving employees

other than the complainant, also is relevant to the issue of whether a

hostile environment existed in violation of Title VII. Vinson v. Taylor,

753 F.2d 141, 146 (D.C. Cir. 1985), aff'd in relevant part and rev'd in

part, Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).

We find that complainant has not established a prima facie case of

harassment based on her sex.

Although complainant was a member of a protected class, we find no

evidence that the behavior complained of was based on sex, but rather

was based on the personal relationship, which is not a prohibited basis

under Title VII.

The Commission notes that even if all of the claims in the complaint

render complainant aggrieved, we still find that, after reviewing

the record as a whole, complainant has failed to show that any of the

complained of actions was motivated by discrimination on the bases of

sex or race.

Therefore, we AFFIRM the agency's final decision.

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

December 3, 2001

__________________

Date

1 Complainant has presented no evidence

that she was treated less favorably than any other similarly situated

non-Black employee regarding the denial of annual leave. Furthermore,

the Commission notes that a Black, female employee was granted annual

leave on December 31, 1998.