01A03183_r
09-24-2002
William H. Tschappat, Complainant, v. Elaine Chao, Secretary, Department of Labor Agency.
William H. Tschappat v. Department of Labor
01A03183
September 24, 2002
.
William H. Tschappat,
Complainant,
v.
Elaine Chao,
Secretary,
Department of Labor
Agency.
Appeal No. 01A03183
Agency No. CRC5-03-091
Hearing No. 170-99-8081X
DECISION
Complainant filed a timely appeal from an agency final order dated
February 28, 2000, finding no discrimination regarding his complaint of
unlawful employment discrimination. The record reveals that complainant
filed a formal complaint alleging that the agency discriminated against
him on the basis of age (61), in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq, when
he failed to be selected for the position of Safety and Occupational
Health Specialist, GS-018-13, Erie, PA. The agency found complainant
to be qualified, but ultimately selected another employee.
At the conclusion of the complaint investigation, complainant requested
a hearing before an EEOC Administrative Judge (AJ). The AJ issued a
decision without a hearing, finding no discrimination. The AJ concluded
that while complainant had established a prima facie case of age
discrimination, the agency articulated a legitimate, non-discriminatory
reason for complainant's non-promotion, and that complainant failed
to show that the agency's reason was a pretext for discrimination.
Specifically, the AJ found that the selectee was chosen because he had
greater experience conducting inspections in manufacturing industries,
experience which the Selecting Officer (SO) felt was a priority for
Erie, PA. The AJ also found that the selectee was chosen because he had
greater general manufacturing experience, more supervisory experience,
and superior writing skills. The agency implemented the AJ's decision in
its final action. Complainant makes no argument contesting the agency's
decision on appeal.
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. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). 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,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Upon review, we find that there are no genuine issues of material fact in
this case, and that the AJ properly issued a summary judgment decision
without holding a hearing. The Commission also agrees with the AJ that
complainant has not met his burden of showing that the legitimate,
nondiscriminatory reasons articulated by the agency were a pretext
for its action. As such, we find that complainant has not shown by a
preponderance of the evidence that the agency's selection was motivated
by discrimination on the basis of age.
Accordingly, the agency's final action finding no discrimination 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
September 24, 2002
__________________
Date