01A11643
07-10-2001
Michael Ypsilantis, Complainant, v. Elaine Chao, Secretary, Department of Labor, (Occupational Safety and Health Administration), Agency.
Michael Ypsilantis v. Department of Labor (Occupational Safety and
Health Administration)
01A11643
July 10, 2001
.
Michael Ypsilantis,
Complainant,
v.
Elaine Chao,
Secretary,
Department of Labor,
(Occupational Safety and Health Administration),
Agency.
Appeal No. 01A11643
Agency No. 8-05-130
Hearing No. 220-A0-5084X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning his equal employment opportunity (EEO) 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant alleges he was discriminated against on the bases of national
origin (Greek-American), age (D.O.B. July 9, 1948), and in reprisal for
prior protected activity<1> when he was not selected for the position
of Cincinnati Area Office Supervisory Safety and Occupational Health
Specialist, GM-0018-13.
The record reveals that at the relevant time, complainant was working as a
Safety and Occupational Health Specialist at the agency's Indianapolis,
Indiana Area Office. Complainant filed a formal EEO complaint with
the agency on July 1, 1998, alleging that the agency had discriminated
against him as referenced above. At the conclusion of the investigation,
complainant received a copy of the investigative report and requested
a hearing before an EEOC Administrative Judge (AJ). The AJ issued a
decision without a hearing, finding no discrimination. The AJ concluded
that complainant failed to establish a prima facie case of age, national
origin, or reprisal discrimination. Specifically, the AJ found that
complainant failed to demonstrate that the selecting official was aware
of complainant's age, national origin, or prior EEO activity at the time
of the non-selection. The final agency decision (FAD) implemented the
AJ's decision.
On appeal, complainant contends that the AJ erred in finding
that complainant had failed to establish a prima facie case of age
discrimination, as the record establishes that the information provided to
the selecting official contained the age of each applicant. In response,
the agency states that the AJ was correct in his determinations,
however even assuming arguendo complainant established a prima facie
case, the agency articulated a legitimate, non-discriminatory reason
for complainant's non-selection, which complainant failed to show was
mere pretext.
For the following reasons, the Commission affirms the agency's final
decision. The Commission's regulations allow an AJ to issue a decision
without a hearing when he or she finds that there is no genuine issue
of material fact. A fact is material if it has the potential to affect
the outcome of the case. If a case can only be resolved by weighing
conflicting evidence, summary judgment is not appropriate. In the
context of an administrative proceeding under Title VII and the ADEA,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
After a careful de novo review of the record, the Commission finds that
the AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. Applying the standards
set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the
Commission agrees with the AJ that complainant failed to establish a prima
facie case for national origin or reprisal discrimination as there is no
evidence that the selecting official was aware of complainant's prior
EEO activity or his national origin at the time of his non-selection.
We note there was no face to face contact between complainant and the
selecting official as the interview was conducted over the telephone.
Complainant has also failed to establish a prima facie case for
age discrimination. Complainant may establish a prima facie case of
discrimination in the nonselection context by showing that: (1) he is a
member of a protected class; (2) he was qualified for the position; (3)
he was not selected for the position; and (4) he was accorded treatment
different from that given to persons otherwise similarly situated who
are not members of his protected group or, in the case of age, who are
considerably younger than he. Williams v. Department of Education, EEOC
Request No. 05970561 (August 6, 1998); Enforcement Guidance on O'Connor
v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002 (September
18, 1996). Even assuming, as complainant argues, the selecting official
knew complainant's age, complainant has still failed to establish a prima
facie case of age discrimination as the selectee was also over forty and
only two years younger than complainant. Thus, the selectee was a member
of complainant's protected class who was not considerably younger than he.
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, we AFFIRM the agency's
final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
July 10, 2001
__________________
Date
1 Complainant has filed several previous EEO complaints and has testified
on behalf of several coworkers in their EEO complaints against the agency.