Teresita H. Montelongo, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 2, 2000
01994303 (E.E.O.C. Aug. 2, 2000)

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.