Michael Ypsilantis, Complainant,v.Elaine Chao, Secretary, Department of Labor, (Occupational Safety and Health Administration), Agency.

Equal Employment Opportunity CommissionJul 10, 2001
01A11643 (E.E.O.C. Jul. 10, 2001)

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.