Dennis G. Cinalli, Complainant, Kenneth S. Apfel, Commissioner, Social Security Adminsitration, Agency.

Equal Employment Opportunity CommissionMay 22, 2000
01990899 (E.E.O.C. May. 22, 2000)

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.