Uma Ashok, Appellant,v.Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionSep 9, 1999
01975206 (E.E.O.C. Sep. 9, 1999)

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.