01970586
11-13-1998
Dennis G. Cinalli, )
Appellant, )
)
v. ) Appeal No. #01970586
) Agency Nos. #SSA-194-93
Kenneth S. Apfel, ) #SSA-874-94
Commissioner, ) Hearing Nos. #170-95-8500X
Social Security ) #170-95-8501X
Administration, )
Agency. )
______________________________)
DECISION
INTRODUCTION
On October 26, 1996, appellant timely initiated an appeal to the Equal
Employment Opportunity Commission (Commission) from a final agency
decision concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The appeal is accepted by the Commission in
accordance with EEOC Order No. 960.001.
ISSUES
The issues on appeal are whether appellant has established by a
preponderance of the evidence that the agency discriminated against him
on the bases of: (1) race (White), and reprisal (prior EEO activity)
when on July 1, 1992, appellant received a memorandum (the memorandum)
from the agency, in which it stated that appellant did not work for one
(1) hour on June 13, 1992; (2) race (White), and reprisal (prior EEO
activity) when, on May 16, June 6, June 27, July 20, and August 15,
1992, respectively, the agency denied appellant the opportunity to work
overtime (the denial of overtime), and (3) reprisal (prior EEO activity)
when, on May 3, 1994, the agency issued appellant a written reprimand
(the reprimand).
CONTENTIONS ON APPEAL
On appeal, appellant essentially reiterates the contentions he raised
below during the investigation of this complaint. In addition, appellant
alleges that the AJ, and the agency, based their respective findings on
"believe[d] to be fact[s]" as opposed to "actual fact[s]". The agency
raises no new arguments on appeal.
BACKGROUND
The record reveals that appellant filed formal EEO complaints with
the agency on December 14, 1992, and August 22, 1994, respectively,
alleging that the agency discriminated against him as referenced above.
The agency accepted appellant's complaint, conducted an investigation,
provided appellant with a copy of the investigative report, and advised
appellant of his right to request either a hearing before an EEOC
administrative judge (AJ) or a final agency decision (FAD). Appellant
requested a hearing. A hearing was held on August 7, and 21, 1996.
In a recommended decision (RD) dated August 21, 1996, with respect to the
first two (2) issues as stated above, the AJ found that the agency did
not discriminate against appellant on the bases of race and/or reprisal
(prior EEO activity). With respect to the third and final issue, the
AJ found that the agency did not discriminate against appellant on the
basis of reprisal (prior EEO activity). The agency subsequently adopted
the AJ's recommended decision in a final agency decision dated September
30, 1996. It is from this decision that appellant now appeals.
Appellant is a White male who has been employed with the agency as
a warehouse worker (forklift operator), WG 5/5, at the MidAtlantic
Programs Service Center, Building Management Section (MATPSC-BMS),
in Philadelphia, Pennsylvania. His duties include receiving incoming
shipments, unloading trucks using a forklift, counting stock, and
billing and delivering requisitions. On Saturday June 13, 1992,
appellant received an overtime assignment during his temporary promotion
to the position of maintenance repair worker, where his duties were to
repair desks, and construct boxes. Appellant's supervisor accused him
of not working for approximately one (1) hour on June 13, 1992, and on
July 1, 1992, the agency issued appellant a memorandum to this effect.
With respect to the agency's issuance of the memorandum, appellant
alleged that the agency discriminated against him based upon several
reasons. Appellant alleged that the memorandum was a continuation of the
long-term harassment that appellant had been subjected to by the agency.
Furthermore, appellant alleged that the agency issued the memorandum as
a result of appellant's prior EEO activity. In February 1991, appellant
provided a written statement in response to an agency investigation of
an EEO complaint filed by a co-worker.
In her recommended decision, the AJ concluded, with respect to the first
issue, that appellant failed to establish a prima facie case of race
discrimination with respect to the agency's issuance of the July 1,
1992 memorandum, because appellant failed to show that he was treated
differently than similarly situated employees outside of his protected
group. Furthermore, the AJ found that in the absence of appropriate
comparative employees, appellant contends that a causal connection
existed between his race and the agency's July 1, 1992 memorandum.
Specifically, appellant testified that two other White employees, under
his second line supervisor, filed prior EEO complaints against the agency.
The AJ found that the filing of EEO complaints by agency employees alone,
did not demonstrate that unlawful racial bias motivated the agency's
action of issuing appellant the memorandum, or that the agency engaged
in race discrimination when it issued the memorandum.
The AJ further determined that appellant's observations that the agency
provided overtime to laborers, and job assignments to print shop operators
are not material to the agency's issuance of the memorandum to appellant.
The reason being that appellant, who is a warehouse worker, is not
similarly situated to agency employees who are print shop operators
and laborers.
The AJ found that appellant established a prima facie case of reprisal
(prior EEO activity - the February 1991 written statement). However, with
respect to reprisal, appellant failed to demonstrate, by a preponderance
of the evidence, that the agency's articulated reason for issuing the
memorandum was pretextual. Furthermore, notwithstanding appellant's
failure to establish a prima facie case of race discrimination regarding
the agency's issuance of the memorandum, the AJ found that appellant
failed to prove, by a preponderance of the evidence, that the agency's
non-discriminatory reason for its actions against appellant based upon
race was pretextual. Specifically, regarding race discrimination and
reprisal, appellant's second line supervisor testified that he issued
the memorandum, with the approval of appellant's fourth line supervisor,
not as a reprimand or disciplinary action, but as an explanation of
agency work procedure for Saturday overtime assignments. The fourth
line supervisor testified that she approved the memorandum because of its
intent to put appellant on notice regarding overtime requirements. Both
the second and fourth line supervisors averred that appellant received
compensation for eight (8) hours of premium overtime for June 13, 1992.
The agency stated that appellant was issued the memorandum because he
was not in the assigned area making boxes as were the other employees.
According to his first line supervisor, appellant stayed in the repair
shop office for approximately one (1) hour before this supervisor could
locate him. The first line supervisor informed appellant that if he
"pull[ed] another stunt by not doing his share of the work load, he
would not be permitted to work overtime". The AJ noted, and appellant
did not dispute that he was aware of his assignment to construct boxes.
He was the only employee in his work unit who was not at the work site.
The agency expected appellant to assume his work tasks without awaiting
specific directions to do so<1>. In addition, appellant alleged that his
second line supervisor's statement in the memorandum to his fourth line
supervisor, that he, (the second line supervisor), was "getting a whole
lot sick of" appellant, and appellant "knows it", indicates "retaliatory
animus" by the agency toward appellant. To the contrary, the AJ held
that this statement alone was insufficient to show retaliatory animus;
however, appellant's conduct on June 13, 1992 "motivated" the agency's
issuance of the July 1, 1992 memorandum.
Regarding the second issue, in which appellant alleges that the agency
denied him overtime on May 16, June 6, June 27, July 20 and August
15, 1992, the AJ determined that appellant failed to establish a
prima facie case with respect to race discrimination and/or reprisal.
The AJ found that appellant failed to prove that the agency's purported
non-discriminatory reason for denying appellant overtime was pretextual.
Appellant alleged that the agency denied him the opportunity to work
overtime on the specific dates at issue, while non-White employees
worked overtime on these days. To the contrary, the agency presented a
legitimate nondiscriminatory explanation for why it failed to assign
appellant overtime assignments on the dates at issue. The agency
stated that appellant was asked on every opportunity along with the
rest of the warehouse workers to work overtime on Saturdays, Sundays
and some nights. However, appellant specifically informed his second
line supervisor that he would let him know when he would be available
to work overtime. Therefore, the agency did not assign appellant any
overtime assignments that he did not request. In addition, the AJ noted
that appellant acknowledged at the EEOC hearing that he had expressed to
the agency disinterest in working certain overtime assignments, such as
at the agency's Wheatsheaf Lane facility. In fact, on June 27, 1992,
which is one of the dates appellant asserts that the agency denied him
the opportunity to work overtime, appellant acknowledged that he declined
the opportunity to work overtime at the Wheatsheaf site. The agency did
not maintain any records of which employees requested to work overtime,
or which employees declined to work overtime. The AJ determined that
a preponderance of testimony from the agency indicated that overtime
assignments were made in accordance with employee job function as
well as employee desire to work such overtime. The AJ concluded that
appellant failed to establish that he requested, and the agency denied
him the opportunity to work overtime assignments on May 16, June 6,
June 27, July 20, and August 15, 1992, respectively. Specifically,
appellant's third line supervisor and fourth line supervisor testified
that on May 16 and August 15, 1992, overtime assignments were available
solely for supervisors and laborers; appellant was neither. Furthermore,
on June 6, 1992, the agency testified that appellant failed to request
an overtime assignment. With respect to appellant working overtime on
Saturday, July 20, 1992, the agency stated that its policy for working
overtime on a Saturday is that an employee must work four (4) hours on
the preceding Friday. Appellant did not work the Friday before that
July 20th; therefore, pursuant to policy, the agency did not permit
him to work overtime on July 20, 1992. The AJ concluded that appellant
failed to show that he informed agency officials that he desired to work
overtime on the dates at issue.
With respect to the third issue, the AJ determined that appellant failed
to establish a prima facie case of reprisal because he failed to show a
causal connection existed between his prior EEO activity and the agency's
May 3, 1994 reprimand of him. Notwithstanding appellant's failure
to establish a prima facie case of reprisal, the agency presented a
nondiscriminatory legitimate explanation for its May 3, 1994 reprimand
of appellant. The agency testified that it investigated the April 8,
1994 box-throwing incident, and determined that appellant had engaged
in the misconduct of throwing a box at a co-worker<2>.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission
finds that the AJ's recommended decision set forth the relevant facts,
and properly analyzed appellant's complaint as a disparate treatment
claim. See McDonnell Douglas Corp. v Green, 411 U.S. 792 (1973); Texas
Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253-56 (1981);
Furnco Construction Company v. Waters, 438 U.S. 567 (1978); Hochstadt
v. Worcester Foundation for Experimental Biology, 425 F.Supp. 318, 324
(D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976) (applying the McDonnell
Douglas standard to reprisal cases). See also St. Mary's Honor Center
v. Hicks, 509 U.S. 502 (1993), and U.S. Postal Service Bd. of Governors
v. Aikens, 460 U.S. 711, 715-716 (1983). Additionally, the AJ set forth
the relevant facts and properly analyzed the appropriate regulations,
policies, and laws applicable to this case. Based upon our review of the
record, assuming, for arguments sake, that appellant had established a
prima facie case of race discrimination or reprisal with respect to the
first and second issues, (the memorandum, and the denial of overtime,
respectively); and, appellant had established a prima facie case of
reprisal with respect to the third issue (the reprimand), appellant
has failed to establish that the agency's legitimate non-discriminatory
reasons for: (1) issuing the July 1, 1992 memorandum to appellant; (2)
denying appellant the opportunity to work overtime, and (3) issuing
appellant the May 3, 1994 reprimand, were pretext designed to mask
discrimination. Therefore, we find that appellant failed to prove, by
a preponderance of the evidence, that the agency discriminated against
appellant on the above cited bases of discrimination.
CONCLUSION
The Commission discerns no basis to disturb the AJ's finding of no
discrimination. Accordingly, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
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 this
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. �l6l4.604(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 this 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 this 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 this 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:
Nov. 13, 1998
_______________________ DATE
Ronnie Blumenthal, Director
Office of Federal Operations
1 This memorandum was removed from appellant's "7B" file on June 1, 1993.
2 On April 8, 1994, a supply clerk assigned to the maintenance office
informed the first level supervisor that he believed that appellant had
thrown a box at him while he and appellant were alone in the maintenance
office. (The agency obtained written statements from the parties and
met with the parties involved in the box-throwing incident).