01986486
05-22-2000
Dennis G. Cinalli, Complainant, Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Dennis G. Cinalli v. Social Security Administration
01986486
May 22, 2000
Dennis G. Cinalli, )
Complainant, )
) Appeal No. 01986486
) Agency No. 97-0202-SSA
)
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration, )
Agency. )
)
DECISION
INTRODUCTION
On August 21, 1998, Dennis G. Cinalli (the complainant) timely filed an
appeal with the Equal Employment Opportunity Commission (the Commission)
from a final agency decision (FAD) dated July 22, 1998, 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.<1> The Commission hereby accepts the appeal in accordance with 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue on appeal is whether the agency properly determined that
complainant failed to prove that the agency discriminated against him
based on race and reprisal.
BACKGROUND
Complainant was employed by the agency as a Warehouseman / Forklift
Operator, WG-5, at the agency's Mid-Atlantic Program Service Center.
Complainant initiated EEO Counseling on August 26, 1996. He filed a
formal complaint on February 6, 1997, alleging discrimination on the bases
of race (white) and reprisal (prior EEO activity) when: 1) on July 15,
1996, his supervisor placed a written summary (prepared by complainant)
of the June 14, 1996, conversation he had with management officials,
and their response, in his SF-7B Extension File; 2) in September 1996,
he did not receive a performance award for the 1996 appraisal period;
and 3) on October 18, 1996, management questioned him about not taking
his morning break at the scheduled time. The agency accepted the
complaint for investigation and processing. At the conclusion of the
investigation, on December 22, 1997, the agency issued a copy of its
investigative report and notified complainant of his right to request an
administrative hearing. After complainant failed to request a hearing,
the agency issued its FAD on July 22, 1998.
In its FAD, the agency found that the complainant had failed to establish
a prima facie case of race discrimination on issue 1 because he had
not been treated differently than similarly situated employees not
of his protected class. It also found that because complainant had
written the conversation summary that was placed in his file, it was
not an adverse action taken by management, and he therefore had failed
to show a prima facie case of reprisal for issue 1. The FAD further
stated that complainant had failed to establish that the legitimate,
nondiscriminatory reason articulated by the agency for its action
was a pretext for discrimination. On issue 2, the agency found that
complainant had failed to show that the agency's reasons for not giving
him an award were pretextual. Regarding issue 3, the agency dismissed
it on the basis that he had failed to state a claim, however, the agency
goes on to state that even assuming complainant had stated a claim,
he would not have met his burden of proof to show discrimination and
would not have prevailed. This appeal followed.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that
the agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the
third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In response to complainant's claims of discrimination, the agency
presented evidence that complainant's supervisor (S-1) had placed written
memorandums and conversation summaries in other employees' SF-7B files.
S-1 claimed that he did this "for safe keeping." He testified that
the SF-7B file was for internal office use only, that its purpose was
to keep track of anything pertaining to the employees' performance,
and that anything personal (such as the conversation summary) would be
removed from it and given back to the employee before the file would be
forwarded to a new supervisor, in the event that the employee would move
to a different location. Regarding complainant not receiving a performance
award, S-1 testified that complainant does what he is required to do,
and does not do anything extra, such as take the initiative to clean
up the worksite or make cartons on his downtime. Because he does the
minimum, S-1 felt that complainant did not deserve a performance award.
Regarding issue 3, S-1 testified that it was part of his duties as a
manager to remind employees when their break time was over, and that he
would say, and had said at some point in time, to everyone that works
for him that their break or lunch time was over. We find that the agency
has articulated legitimate, nondiscriminatory reasons for its actions.
Since the agency articulated a legitimate, nondiscriminatory reason
for its action, the burden returns to the complainant to demonstrate
that the agency's articulated reason was a pretext for discrimination.
We find that complainant has failed to do so. Beyond his bare assertions
that the agency engaged in each of the actions for discriminatory reasons,
complainant does not provide further proof to show that discrimination was
the real reason for each action. Therefore, the agency's determination
that complainant failed to establish that he was discriminated against
was correct.
CONCLUSION
Accordingly, the decision of the agency was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish 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.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF
RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must 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 timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.604). The request or opposition must
also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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. 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 (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:
_05-22-00________ __________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
1 On 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 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.