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.