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

Equal Employment Opportunity CommissionDec 6, 2000
05980445 (E.E.O.C. Dec. 6, 2000)

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.