01994303
08-02-2000
Teresita H. Montelongo, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Teresita H. Montelongo v. United States Postal Service
01994303
August 2, 2000
Teresita H. Montelongo, )
Complainant, )
)
v. ) Appeal No. 01994303
) Agency No. 4-G-780-0029-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dismissing her complaint of unlawful employment
discrimination brought under Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1>
We accept the appeal pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405).
After unsuccessful EEO counseling, complainant filed a formal complaint
claiming that she was subjected to discrimination and harassment by her
former Supervisor on the bases of sex, national origin, age, and reprisal
when:
On November 18, 1998, her former Supervisor learned that she was 12
units late for work, and she informed her current Supervisor; and,
In October 1997, when her detail was prematurely terminated,
she complained to her former Supervisor (who was then her current
supervisor), who then retaliated against her as described in eleven
�background� incidents over an approximately one year period,
culminating with the above incident in November 1998.
In its FAD, the agency dismissed the complaint for failure to state a
claim, finding that complainant was not aggrieved by the agency's action
in incident 1. The agency also determined that the �background�incidents,
taken together, were not so severe as to state an actionable claim
of harassment.
On appeal, complainant argues that the agency misconstrued her claim as
only consisting of incident 1, and failed to evaluate the background
incidents as evidence of harassment. Complainant further argues that
these incidents state a claim of harassment because they were committed
by the same Supervisor within the period of a year, creating a hostile
work environment.
Consistent with the Commission's policy and practice of determining
whether a complainant's harassment claims are sufficient to state a
hostile or abusive work environment claim, the Commission has repeatedly
found that claims of a few isolated incidents of alleged harassment
usually are not sufficient to state a harassment claim. See Phillips
v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,
1996); Banks v. Health and Human Services, EEOC Request No. 05940481
(February 16, 1995).
We have carefully reviewed the record, but we find that complainant
has failed to state an actionable claim of harassment based on a
hostile work environment. See Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997). Furthermore, regarding
incident 1, we concur with the agency's dismissal because the record
shows that no action was taken with regard to the late report, with
complainant merely being asked by her current Supervisor to call when
she would be late, such that she was not harmed in a term, condition,
or privilege of employment. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 22, 1994);64 Fed. Reg. 37,644, 37,656
(1999)(to be codified as EEOC Regulation 29 C.F.R. � 1614.107(a)(1)).
Without more persuasive evidence, we find that the agency's decision
was proper. Accordingly, the agency's decision dismissing the instant
complainant is hereby AFFIRMED for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
August 2, 2000
____________________________
Date Carlton M. Hadden, Director
Office of Federal Operations
1On 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 64 Fed. Reg. 37,644 (1999), where applicable,
in deciding the present appeal. The regulations, as amended, may also be
found at the Commission's website at www.eeoc.gov.