01A13851
08-26-2002
Jeffrey W. Eisinger, Complainant, v. Hector V. Barreto, Administrator, Small Business Administration, Agency.
Jeffrey W. Eisinger v. Small Business Administration
01A13851
August 26, 2002
.
Jeffrey W. Eisinger,
Complainant,
v.
Hector V. Barreto,
Administrator,
Small Business Administration,
Agency.
Appeal No. 01A13851
Agency No. 05-97-610
DECISION
Complainant timely initiated this appeal from the final agency decision
(FAD) concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleged in his complaint that
he was subjected to unlawful discrimination on the bases of his race
(White) and sex when he was detailed to the agency's Santa Ana District
Office, effective April 7, 1997.<1> At the conclusion of the agency's
investigation into his complaint, complainant requested that the agency
issue a FAD.
In its FAD, the agency concluded that complainant's allegation failed
to state a claim, as he had failed to establish that he had been harmed
by the aforementioned detail, and therefore the complaint should be
dismissed. The agency also argued that dismissal was warranted on the
alternative ground that the complaint was moot. The agency continued its
analysis of the complaint, however, finding that even if the complaint
were not dismissed for the aforementioned reasons, complainant still
failed to prove his claim of disparate treatment. The agency found
that complainant failed to establish a prima facie case of race or sex
discrimination, as he failed to show that the detail at issue constituted
an adverse action affecting the terms, conditions, and/or privileges of
his employment, as he lost no pay or benefits during the two-month detail,
and he was returned to his prior position at the conclusion of the detail.
The agency also found that it had articulated legitimate,
nondiscriminatory reasons for the detail. In support of that finding,
the agency pointed to affidavit testimony by agency officials involved
in making the decision to detail complainant. These officials stated
that there had been allegations of serious issues relating to the
management and operation of its Fresno, California, Commercial Loan
Servicing Center (Fresno Center), including allegations that employees
were not working well as a unit, and that there had been a number of
EEO issues and complaints. The agency found that the officials decided
to detail complainant and the Director of the Fresno Center to the
Santa Ana District Office in order to facilitate the investigation of
the alleged management problems at the Fresno Center, and that this
decision was made in the best interests of the agency in order to
help improve the working environment of the Fresno Center. The agency
further found that complainant had presented no evidence to show that the
agency's articulated reasons for complainant's detail were pretextual.
The agency concluded that complainant had failed to show that he had
been subjected to disparate treatment on the bases of his race and sex.
This appeal followed.
After a thorough examination of the evidence on appeal, it is the decision
of the Commission to affirm the agency's finding that complainant has
failed to establish that he was subjected to unlawful discrimination
as claimed. In claims such as those presented by complainant, which
allege disparate treatment based upon race and/or sex, and where there
is an absence of direct evidence of such discrimination, the allocation
of burdens and order of presentation of proof is a three-step process.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). First,
complainant must 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. Kimble v. Department of
the Navy, EEOC Appeal No. 01983020 (Aug. 22, 2001). Next, the agency
must articulate a legitimate, nondiscriminatory reason for its actions.
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
If the agency is successful in meeting its burden, complainant must
prove, by a preponderance of the evidence, that the legitimate reason
proffered by the agency was a pretext for discrimination. Id. at 256.
However, the ultimate burden of persuading the trier of fact that the
agency intentionally discriminated against complainant remains at all
times with complainant. Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 143 (2000).
Even assuming for the sake of this appeal that complainant's complaint
states a claim under our regulations, and is not moot,<2> and that he
had established a prima facie case of race and/or sex discrimination, the
agency correctly found that it has sufficiently articulated a legitimate,
nondiscriminatory reason for its action, and complainant has not presented
sufficient evidence to satisfy his burden of proving by a preponderance of
the evidence that the agency's articulated reason is merely pretext for
unlawful race or sex discrimination. While complainant has repeatedly
asserted that he was placed on the subject detail as a punishment for
criticizing the performance of some of his female coworkers, he has failed
to present any evidence that would indicate that the agency was motivated
in its decisionmaking by an unlawful animus toward his race or sex.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, it is the decision of the
Commission to AFFIRM the FAD.
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
August 26, 2002
Date
1 This matter was previously presented to the Commission, on appeal from
a procedural dismissal by the agency. Eisinger v. Small Bus. Admin., EEOC
Appeal No. 01976362 (Aug. 4, 1998), request for reconsideration denied,
EEOC Request No. 05981123 (May 26, 2000). The Commission reversed the
agency's procedural dismissal and remanded the complaint for continued
administrative processing. Id.
2 We express no opinion in this decision on the agency's conclusion
that the complaint fails to state a claim and that the claim is moot.