01997067
02-28-2001
Maribel Alderete, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Maribel Alderete v. Department of Veterans Affairs
01997067
February 28, 2001
.
Maribel Alderete,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01997067
Agency No. 99-3805
DECISION
Complainant filed a timely appeal with this Commission from an agency's
August 27, 1999 decision to dismiss 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. In her complaint,
complainant alleged that she was subjected to discrimination on the
bases of national origin (Mexican) and sex (female) when on July 21,
1999, the union president stated �you are not a citizen� in front of
other employees.
The agency dismissed the complaint for failure to state a claim.
The agency noted that complainant suffered no concrete harm, and found
the claims not �sufficiently egregious to render complainant aggrieved.�
On appeal, complainant contends that the agency erred by only looking
at one incident, rather than the relevant pattern of harassment.
Complainant attached several documents to her appeal. In a September 15,
1999 report of contact, complainant asserted that the union president's
roommate, when asked how he was doing, looked complainant �straight in
the eye� and said, �I'm fine, but I will be better when the rat doesn't
work here anymore.� A coworker reported that the same person, outside of
complainant's presence, said complainant would never make it in her new
job, and will �always be just a Housekeeper.� Complainant claimed that
she has been wrongfully accused of entering the country illegally (she
claims to be a naturalized citizen), and of having a sexual relationship
with her former supervisor.
The record contains a copy of the Counselor's Report. The report only
details the incident defined by the agency in its dismissal. It explains
that the union president made this comment after complainant was selected
for a position over a native-born applicant.
EEOC Regulations require the dismissal of complaints that fail to state
a claim. See 29 C.F.R. � 1614.107(a)(1). To state a claim, complainant
must allege present harm inflicted on the basis of race, sex, religion,
national origin, age, disability, or prior protected activity. See Diaz
v. Department of the Air Force, EEOC Request No. 05931049 (April 21,
1994). In claims of hostile work environment harassment, the incidents
must be sufficiently severe or pervasive to alter the conditions of
the complainant's employment. See Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993). To determine whether an actionable claim of
harassment exists, the agency must view all of the allegedly harassing
incidents together in a light most favorable to complainant. See Cobb
v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997).
Complainant argues that a pattern of harassment existed, but it
appears that she only discussed one incident with the EEO Counselor.
This incident, by itself, is not sufficiently severe to create a hostile
work environment. Further, even if all of the harassing incidents are
considered together in a light most favorable to complainant, they fail
to state a claim.
CONCLUSION
Accordingly, the agency's dismissal is AFFIRMED.
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 28, 2001
__________________
Date