05980445
12-06-2000
Uma Ashok, Complainant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Uma Ashok v. Social Security Administration
05980445
December 6, 2000
.
Uma Ashok,
Complainant,
v.
Kenneth S. Apfel,
Commissioner,
Social Security Administration,
Agency.
Request No. 05980445
Appeal No. 01960924
Agency No. SSA-557-93
Hearing No. 160-95-8068X
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Uma Ashok
v. Social Security Administration, EEOC Appeal No. 01960924 (January
29, 1998).<1> EEOC Regulations provide that the Commission may, in
its discretion, reconsider any previous Commission decision where the
requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
Complainant filed a formal complaint on May 12, 1993, in which she alleged
discrimination on the bases of national origin (Asian-Indian), religion
(Hindu), and reprisal (prior EEO activity)<2> when she was harassed
by her supervisor and co-workers. The agency accepted the complaint
for investigation. At the conclusion of the investigation, complainant
elected a hearing before an EEOC Administrative Judge (AJ). On September
18, 1995, the AJ issued a finding of no discrimination. Specifically,
the AJ found that complainant failed to establish a prima facie case of
harassment. In its final decision, the agency adopted the AJ's findings.
Our previous decision summarily affirmed the agency's final decision.
In complainant's request for reconsideration, she contends that reprisal
should not have been dropped as a basis. Because the record does not
contain sufficient information to allow us to determine whether reprisal
was appropriately dropped, that issue will be considered.
In order to establish a prima facie case of discrimination for a claim
of reprisal, complainant must show the existence of four elements:
(1) that she engaged in protected activity; (2) that the alleged
discriminating official was aware of the protected activity; (3) that
she was disadvantaged by an action of the agency contemporaneous with
or subsequent to such participation; and (4) that there was a causal
connection between the protected activity and the adverse employment
action. See, Hochstadt v. Worcestor Foundation for Experimental
Biology, Inc., 425 F.Supp. 318 (D. Mass. 1976), aff'd 545 f.2d 222
(1st Cir. 1976), see also Mitchell v. Baldridge, 759 F.2d 80, 86
(D.C. Cir. 1985); Burris v. United Telephone Co. of Kansas, Inc., 683
F.2d 339, 343 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982).
The causal connection may be shown by evidence that the adverse action
followed the protected activity within such a period of time and in such
a manner that a reprisal motive is inferred. Simens v. Department of
Justice, EEOC Request No. 05950113 (March 28, 1996) (citations omitted).
Generally, the Commission has held that nexus may be established if the
protected activity and the adverse action occurred within one year of
each other. Patton v. Department of the Navy, EEOC Request No. 05950124
(June 27, 1996).
We note in analyzing this case, the AJ used the tripartite test
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
But the McDonnell Douglas analysis is normally reserved for disparate
treatment cases. Harassment cases are analyzed under Harris v. Forklift
Systems, 510 U.S. 17 (1993). We also note that, notwithstanding the
application of the incorrect legal analysis, the AJ correctly summarized
the relevant facts.
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985).
A single incident or group of isolated incidents will not be regarded as
discriminatory harassment unless the conduct is severe. Walker v. Ford
Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment
is sufficiently severe to trigger a violation of Title VII must be
determined by looking at all the circumstances, including the frequency
of the discriminatory conduct, its severity, whether it is physically
threatening or humiliating, or a mere offensive utterance, and whether it
unreasonably interferes with an employee's work performance. Harris, Id.
Complainant alleged that she was subjected to a hostile work environment
and harassment. To establish a prima facie case of hostile environment
harassment, complainant must show that: (1) she is a member of a
statutorily protected class; (2)she was subjected to harassment in the
form of unwelcome verbal or physical conduct involving the protected
class; (3) the harassment complained of was based on the statutorily
protected class; and (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering
with the work environment and/or creating an intimidating, hostile, or
offensive work environment. Humphrey v. United States Postal Service,
EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11.
In order to support her claim, complainant pointed to seven incidents
that she believes constitute harassment. After examining those seven
incidents, the AJ found that some of them did not occur and, of the ones
that did, complainant failed to show that they were based on her national
origin or religion. We agree with the AJ's findings. In addition to the
AJ's findings, we also find that complainant failed to show that reprisal
was a basis for the incidents that did occur. For that reason, we hold
that complainant failed to establish a prima facie case of harassment.
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01960924 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
December 6, 2000
__________________
Date
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2According to the decision issued by the EEOC Administrative Judge
(AJ), the basis of reprisal was dropped by complainant. On request to
reconsider, complainant contends that she was forced to drop reprisal
as a basis after the AJ indicated that he would not consider it as a
cause of action.