01A12592
10-04-2001
Nicholas W. Mansolillo, II Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistic Agency), Agency.
Nicholas W. Mansolillo, II v. DOD (Defense Logistic Agency)
01A12592
10/04/01
.
Nicholas W. Mansolillo, II
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Logistic Agency),
Agency.
Appeal No. 01A12592
Agency No. ZA-99-001
DECISION
Nicholas W. Mansolillo, II (complainant) timely initiated an appeal
of a final agency decision (FAD) concerning his complaint of unlawful
employment discrimination on the bases of color (white), and national
origin (Italian), 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
in accordance with 29 C.F.R. �1614.405. For the following reasons,
the agency's decision is AFFIRMED.
ISSUE PRESENTED
The issue on appeal is whether complainant was subjected to discrimination
when he was terminated from his position as a Contract Specialist,
GS-1102-11, by letter dated May 28, 1998.
BACKGROUND
The record reveals that complainant was hired by the agency on June 2,
1997, as a Contract Specialist, GS-1102-11. At the time of his hiring,
complainant was placed on a two year probationary period. By letter dated
May 28, 1998, the agency removed complainant during his probationary
period due to his poor job performance and failure to demonstrate the
level of capability required for his position.
In his formal complaint, as well as in his affidavit, complainant contends
that he was terminated because he put a picture of his black girl friend
on his computer. Complainant states that after he displayed the picture
in February of 1998 there were questions about his performance and use
of his military leave. Complainant states that his performance was
satisfactory because in October 1997, he received a $250 on site award
for his high productivity. Complainant also notes that in February of
1998, he received a Fully Successful rating in all of the elements of
his performance plan. Complainant admits that his acting supervisor
did express some concerns with his performance. However, complainant
notes that the Acting Supervisor did not make any formal suggestions
to improve his performance. Complainant also notes that although he
was hired under the Veterans Readjustment Act authority, he was not
given any training to perform the duties of his position. Instead,
complainant contends that he was assigned upper level work and he was
made to carry a heavier workload than his higher graded colleagues.
In response to complainant's allegation of discriminatory treatment,
his former supervisors averred that complainant was terminated because he
could not perform his duties at his assigned grade level. According to
the Contracting Officer, GS-1102-13, (hereafter CO) white/American,
complainant was assigned to do contracts commensurate with his grade
level, but due to his inability to perform this duty, he was assigned
very simple small purchase orders to complete. Addressing complainant's
level of productivity, the CO stated that complainant completed 12
actions during the year. The CO added that half of those actions
were administrative and did not require any negotiations. By way of
comparison, the CO noted that the typical GS-7 specialist would complete
12 actions in a month and a specialist at complainant's grade level would
complete 30 negotiated actions in one month. Moreover, the CO related
that on one occasion, he asked complainant to complete a Contracting
Officer Representative form which should have taken no more than 10
minutes to complete. After checking with complainant several times,
based on complainant's promises to have the form completed, the CO stated
that the task was still incomplete at the end of the nine-hour workday.
The CO also stated that complainant was assigned to assist a Senior
Buyer in negotiating a contract for a Child Development Center on base,
but he kept dropping the ball and the Senior Buyer ended up doing all of
the work. Additionally, the CO averred that complainant fraudulently
used the agency telephone by placing a number of long distance calls
to beauty parlors in California. In this regard, the CO noted that
complainant's monthly telephone bill was double that of anyone else.
Although he did not provide complainant with a written appraisal during
the 120 days that he acted as complainant's immediate supervisor, the
CO stated that he orally counseled complainant on numerous occasions.
Moreover, the CO stated that complainant was counseled by other managers
and supervisors for his improper use of compensatory time. As such, the
CO stated that instead of getting pre-approval for use of compensatory
time, complainant would work the compensatory time and then request that
he be given credit for the time so that he could go on reserve duty.
The Supervisory Contract Specialist, GM-1102-14, (hereafter SCS)
white/American, also testified on behalf of the agency. The SCS
averred that at the time of complainant's termination, he was on detail
to another organization; thus, he was not directly involved in the
termination action. Nonetheless, the SCS stated that as complainant's
immediate supervisor, the CO consulted with him on the action. The CO
stated that complainant experienced performance problems which were
compounded by complainant spending too much time on the telephone or
talking with other employees in the office. Although he spent 10 months
counseling complainant about his performance, the SCS stated that he did
not issue any written disciplinary action to complainant regarding his
performance problems. The SCS adds that complainant was given overtime
and training to help with his production, but he still was not able to
get the job done. Despite complainant's performance problems, the SCS
stated that he rated complainant as Fully Successful for the pertinent
rating period because at the time he was split between two jobs and he
was not spending that much time in the office. At the time that he
gave complainant his performance rating, the SCS stated that he told
complainant that he was given a generous rating. Similarly, the Director
of the Contracting Office, GM-1102-15, white/American, testified that
complainant was given a Fully Successful performance rating because he
was just on the job six months and they decided to give him the benefit
of the doubt. According to the Director and the SCS, it subsequently
became clear that complainant could not do the job.
At the conclusion of the investigation, the agency informed complainant
of his right to request a hearing or a FAD. By letter dated August 16,
1999, complainant requested that the agency issue a FAD. In a FAD dated
February 2, 2001, the agency held that complainant did not establish a
prima facie case of race or national origin discrimination. Specifically,
the agency determined that complainant was unable to show that he was
treated differently from a similarly situated employee. Moreover, the
agency determined that the responsible management officials articulated
legitimate nondiscriminatory reason for terminating complainant and
complainant failed to show that those reasons were a pretext for
discrimination.
CONTENTIONS ON APPEAL
Neither complainant nor the agency raises any new arguments or contentions
on appeal.
ANALYSIS AND FINDINGS
In any proceeding, either administrative or judicial, involving an
allegation of discrimination, it is the burden of the complainant
to initially establish that there is some substance to his or her
allegation of discrimination. In order to meet this burden, complainant
must establish a prima facie case of discrimination. McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). This means that complainant must
present a body of evidence such that, if not rebutted, the trier of fact
could conclude that unlawful discrimination did occur.
Complainant may establish a prima facie case of color and national origin
discrimination by showing that: (1) he is a member of a protected class;
and (2) he was accorded treatment different from that given to persons
otherwise similarly situated who are not members of his protected group.
See Potter v. Goodwill Industries of Cleveland, Inc., 518 D.2d 864,
865 (6th Cir. 1975). If complainant has established a prima facie
case, the burden of production shifts to the agency to articulate a
legitimate nondiscriminatory reason for the adverse employment action.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252
(1981). If the agency articulates a reason for its actions, the burden
of production then shifts back to complainant to establish that the
agency's proffered explanation is pretextual, and that the real reason is
discrimination. Throughout, complainant retains the burden of proof to
establish discrimination by a preponderance of the evidence. In a prior
ruling, the Supreme Court held that in making a finding on pretext, it is
not sufficient �to disbelieve the employer; the fact finder must believe
the plaintiff's explanation of intentional discrimination.� St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 519 (1993) (emphasis in original).
Although the initial inquiry in a discrimination case usually focuses
on whether the complainant has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated a
legitimate, nondiscriminatory reason for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the complainant has
established a prima facie case to whether he has demonstrated by
a preponderance of the evidence that the agency's reasons for its
actions merely were a pretext for discrimination. Id.; see also United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
714-717 (1983). In this case, the Commission finds that the agency
has articulated legitimate, nondiscriminatory reasons for its action.
Specifically, the CO and the CSC averred that complainant was terminated
because of his unsatisfactory performance. Specifically, they noted that
complainant's productivity level was way below that of his colleagues
of a comparable grade. Moreover, complainant failed to meet promised
deadlines and on the high profile Child Development Center Contract, he
failed to perform and left all the work to be done by the Senior Buyer.
Although complainant was given overtime and additional training to
address his substandard performance, his supervisors testified that they
did not observe any significant improvement in this area.
Upon reviewing the record as a whole, we find that the agency articulated
legitimate nondiscriminatory reasons for its challenged personnel action.
Because the agency articulated a legitimate nondiscriminatory reason for
the challenged action, complainant must demonstrate that these reasons are
pretextual and/or that the agency was motivated by discriminatory animus.
Except for complainant's testimony that his termination is inconsistent
with the award and the Fully Successful performance rating he received at
the end of his first rating period, the record is devoid of any evidence
that rebuts or undermines the reasons articulated by the agency for
the challenged action. The SCS testified that despite complainant's
performance problems, he was generous in rating complainant because he
was in a transitional stage and his time was divided between two jobs.
Both of complainant's supervisors denied that the race of complainant's
girlfriend, or any other impermissible reason, had anything to do with
his removal during his probationary period. It is well established
that agencies have greater discretion to remove an employee during
their probationary period than they do in removing a career employee.
See Pittman v. USPS, EEOC Appeal No. 01840334 (April 4, 1986).
Accordingly, the agency's finding of no discrimination on the bases of
color, and national origin is AFFIRMED.
CONCLUSION
Therefore, the agency's finding of no discrimination in taking the
challenged actions is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
10/04/01
__________________
Date