01975206
09-09-1999
Uma Ashok, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Uma Ashok, )
Appellant, )
) Appeal No. 01975206
v. ) Agency No. SSA-95-416
) Hearing No. EEOC-160-96-8190X
)
Kenneth S. Apfel, )
Commissioner, )
Social Security )
Administration, )
Agency. )
)
)
DECISION
Uma Ashok, (hereinafter, "appellant") filed a timely appeal from a final
agency decision (FAD) concerning her equal employment opportunity (EEO)
complaint of unlawful employment discrimination on the basis of reprisal
(prior EEO activity)<1>, in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq. Appellant alleges she
was discriminated against when she was falsely accused of holding "aged"
cases in her overhead bin during a formal meeting with her supervisor. The
appeal is accepted in accordance with EEOC Order No. 960.001. For the
following reasons, the agency's decision is AFFIRMED.
The record reveals that appellant, a Claims Representative GS-105-11
at the agency's Babylon Branch Office, Lindenhurst, New York, filed a
formal EEO complaint with the agency dated June 9, 1995, alleging that
the agency had discriminated against her as referenced above. At the
conclusion of the investigation, appellant requested a hearing before an
Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ).
Following a hearing, the AJ issued a Recommended Decision (RD) finding
no discrimination. The agency's final decision adopted the AJ's finding
of no discrimination.
The AJ concluded that appellant failed to establish a prima facie case of
discrimination because she failed to establish that the agency took an
adverse action against her with respect to her supervisor's discussion
with appellant of cases that were improperly stored in her overhead bin
and that needed immediate action.
The AJ then concluded that even assuming appellant had established a
prima facie case, the agency articulated legitimate, nondiscriminatory
reasons for meeting with appellant about aged cases and their being
stored in her overhead bin. On this point, the responsible management
official (RMO) stated that she (RMO) had been instructed by the Branch
Manager to meet with appellant and discuss the office policy against
keeping files in overhead bins. She further stated that the reason the
union representative was present was because appellant had required such
during any discussions with management. The RMO also stated that they
met in the Branch Manager's office because it had a door and allowed
them to have privacy in the event the appellant became emotional about
the meeting.<2> According to the RMO, this had happened in the past.
Finally, the RMO stated that she spoke to appellant about the importance
of acting in a timely manner on her cases because to do otherwise would
not adequately serve the public's interest.
Appellant made no significantly new contentions on appeal except to
sharpen her allegations to assert that she had been framed, that the files
in question had been planted in her overhead bin and that her supervisor
had committed perjury during the hearing. The agency requests that we
affirm its final decision.
After a careful review of the record, the Commission finds that the
AJ's recommended decision accurately summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note
that appellant failed to present sufficient evidence that the agency's
meeting with appellant was in retaliation for appellant's prior EEO
activity or that the meeting, in itself, was an official action for
purposes of proving appellant's prima facie case. That is, appellant
failed to establish that any concrete disciplinary action was taken as
it was undisputed that there was no written record made of the incident.
In addition, her contention that she was treated differently from other
employees was substantially rebutted by the testimony of another claims
representative (No prior EEO activity) who stated that he too had been
spoken to about not acting in a timely manner on his files.
In sustaining the AJ's finding of no reprisal, we note that appellant
ignores the apparent agreement on some of the factual issues the parties
had, such as the fact that some of the cases found in appellant's overhead
bin were not "aged", that three of the cases found were assigned to
appellant and that one, which appellant contends proves she was framed,
was not in her overhead bin. These facts, we believe, tend to refute
appellant's contention that there was a more sinister aspect to the
incident of which she complains.
For these reasons, we discern no basis to disturb the AJ's findings
of no discrimination which were based on a detailed assessment of the
record and the credibility of the witnesses. See Gathers v. United
States Postal Service, EEOC Request No. 05890894 (November 9, 1989);
Wrenn v. Gould, 808 F.2d 493, 499 (6th Cir. 1987); Anderson v. Bessemer
City, 470 U.S. 564, 575 (1985). Therefore, after a careful review of
the record, including appellant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
9/09/99
DATE Carlton Hadden, Acting Director
Office of Federal Operations1Appellant raised
the bases of race (Asian/Indian) and national
origin (unidentified) in her complaint but these
bases were not investigated nor did she pursue
them during the hearing. No findings on these
bases were made by the Administrative Judge and
consequently they will not be addressed in this
decision.
2It was undisputed that the Branch Manager was not present at the
meeting.