01990899
05-22-2000
Dennis G. Cinalli, Complainant, Kenneth S. Apfel, Commissioner, Social Security Adminsitration, Agency.
Dennis G. Cinalli v. Social Security Adminsitration
01990899
May 22, 2000
Dennis G. Cinalli, )
Complainant, )
) Appeal No. 01990899
) Agency No. 96-0547-SSA
) Hearing No. 170-97-8319X
Kenneth S. Apfel, )
Commissioner, )
Social Security Adminsitration, )
Agency. )
)
DECISION
INTRODUCTION
On November 13, 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 October 16, 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 had failed to prove that the agency discriminated against
him based on reprisal when he was charged with being Absent Without Leave.
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 May 30, 1996. He filed
a formal complaint on August 19, 1996, alleging discrimination on
the basis of reprisal (prior EEO activity) when he was charged with
fifteen minutes of Absence Without Leave (AWOL) for April 16, 1996.
The agency accepted the complaint for investigation and processing.
At the conclusion of the investigation, the agency issued a copy of its
investigative report and notified complainant of his right to request an
administrative hearing. Complainant timely requested a hearing before
a Commission Administrative Judge (AJ), but in a letter dated July 16,
1998, the AJ remanded the case back to the agency for a final decision
on the record. The AJ remanded the case for the complainant's failure
to prosecute the complaint. Complainant had left a message with the AJ
the day before the scheduled hearing, requesting a postponement due to
illness (allergies), which the AJ did not receive until one hour before
the hearing. Because the complainant failed to show, despite not having
received a positive response from the AJ to his request, the AJ remanded
the case to the agency.
The agency issued its FAD on October 16, 1998. In its FAD, the agency
found that the complainant had failed to establish a causal connection
between his previous EEO activity and the action taken by management
and concluded that he was not discriminated against as alleged.
This appeal followed. In his appeal, complainant argued that the AJ
abused his discretion in not granting the postponement requested by
the complainant. He requested that his case be remanded for a hearing
to be held.
ANALYSIS AND FINDINGS
Initially, we find that the AJ did not abuse his discretion in remanding
the complaint to the agency for a decision on the record. We base this
finding on the facts that the complainant admittedly did not notify the
AJ until the day before the hearing that he would be unable to attend,
he had no confirmation that his message had been received, and he did not
receive a response from the AJ granting his request to postpone. In spite
of not having his request granted, he still failed to show at the hearing.
An Administrative Judge has broad discretion in the conduct of a hearing.
64 Fed. Reg. 37,644, 37,657 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.109(e)); Malley v. Department of the
Navy, EEOC Appeal No. 01951503 (May 22, 1997); Wrenn v. Department of
Veterans Affairs, EEOC Request No. 05920705 (April 1, 1993). We further
note that the complainant failed to provide any medical evidence in
support of his request for a postponement. Therefore, the AJ was within
his rights to remand the case to the agency for a decision on the record.
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 claimed
that complainant had been late and had falsified the sign-in sheet.
It presented the testimony of complainant's third line supervisor (MO-1),
who claimed that at 7:00 a.m. on April 16, 1996, he called the warehouse
looking for some personnel to move some furniture. When he couldn't
reach anyone on the phone he went to the warehouse and could not locate
anyone. According to MO-1, he noted the time, 7:18 a.m., on a piece of
paper along with the last person to sign in, a co-worker of complainant
(CO-1) who signed in at 7:00 a.m., and went elsewhere in the building.
At 7:28 a.m., MO-1 returned, still looking for someone to do a job, and
he again looked at the sign in sheet. CO-1 was still the last person
listed on the sheet. Later in the day, MO-1 went to see complainant's
acting first-line supervisor (MO-2), and asked him when complainant
had arrived that morning. MO-2 looked at the sign-in sheet and noted
that it said 7:15 a.m. After MO-1 explained to MO-2 his actions that
morning, complainant was called into MO-2's office and asked what time
he arrived. Complainant answered 7:15 a.m. MO-1 charged complainant
with an increment of fifteen minutes of AWOL because the next person
to sign in on the sheet arrived at 7:30 a.m. Complainant's regular
first-line supervisor (MO-3) noted that all warehouse employees had
been told about the penalties for falsifying the sign-in sheet not more
than three months earlier. We find that the agency has articulated a
legitimate, nondiscriminatory reason for its action.
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. Complainant did not
show that he had actually arrived at the agency facility at the time
he claimed. He presented no statements from other co-workers who might
have seen him there during the disputed time period. He also did not
claim that he would present testimony to this end at the hearing that
was subsequently canceled. Aside from his assertion that MO-1was lying
about having checked the sign-in sheets at 7:18 and 7:28 a.m. and claiming
that complainant had not signed in, complainant does not show that the
agency's reason was pretext. 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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.