01a05062ypsilantis
03-27-2001
Michael G. Ypsilantis, Complainant, v. Elaine Chao, Secretary, Department of Labor, Agency.
Michael G. Ypsilantis v. Department of Labor
01A05062
March 27, 2001
.
Michael G. Ypsilantis,
Complainant,
v.
Elaine Chao,
Secretary,
Department of Labor,
Agency.
Appeal No. 01A05062
Agency No. 8-05-131
DECISION
Complainant timely initiated an appeal from a 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., 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
alleged that he was discriminated against based on his national origin
(Greek), age (over 40), and reprisal (prior EEO activity), when he was
not selected for the position of Supervisory Safety and Occupational
Health Specialist, GS-13, at the agency's Occupational Safety and Health
Administration (OSHA), Columbus, Ohio, Area Office.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Safety and Occupational Health Specialist, GS-12, at
OSHA's Indianapolis, Indiana, Area Office. Believing he was a victim
of discrimination, complainant sought EEO counseling and subsequently
filed a formal complaint on June 23, 1998. At the conclusion of the
investigation, complainant was informed of his right to request a hearing
before an EEOC Administrative Judge (AJ) or alternatively, to receive a
final decision by the agency. Complainant requested a hearing before
an AJ. The AJ issued a decision, without a hearing, on May 16, 2000,
finding no discrimination. The agency adopted the AJ's decision in an
order issued June 21, 2000.
Complainant held the position of Assistant Area Director in OSHA's
Columbus Area Office from 1986 through 1994. The position was essentially
the same as the position at issue here. The agency indicated that
the person selected for the position would be required to act as team
leader and supervisor to essentially the same group of subordinates the
complainant had supervised before his demotion.
However, in 1994, the complainant was removed from his position for
unprofessional conduct, i.e., two shouting matches that included physical
intimidation and two incidents of vulgar and abusive language. However,
pursuant to a proceeding before the Merit Systems Protection Board (MSPB),
the removal was modified to a demotion, for cause, to a non-supervisory
GS-12 position, and complainant was transferred out of the Columbus Area
Office. The MSPB Judge found that the complainant had conducted himself
in an inappropriate and unprofessional manner towards his co-workers and
did not question the agency's determination that complainant's conduct
demonstrated he was unfit to perform supervisory duties. The Judge
found, however, that the agency's removal of complainant was not
warranted, because complainant had an otherwise exemplary career with
no disciplinary record. Accordingly, the agency was ordered to cancel
complainant's removal and to substitute in its place a demotion to a GS-12
non-supervisory position and, at the agency's discretion, to reassign
him to an office other than the Columbus Area Office. The agency and
complainant subsequently settled the case, in which the parties agreed,
inter alia, that the removal action would be canceled and complainant be
demoted for cause to a non-supervisory position, Safety and Occupational
Health Specialist, GS-018-12, step 5, in OSHA's Minneapolis, Minnesota,
Area Office. In a decision dated September 7, 1995, the full MSPB
accepted the settlement agreement and dismissed complainant's petition
for review and the cross petition for review by the agency.
The Selecting Official (female; age, and national origin unknown) was the
Area Director for OSHA's Columbus, Ohio, Area Office. She indicated that
she received the names of eight qualified candidates for merit staffing
and their resumes. She interviewed all eight candidates, either in
person or by telephone. The Selectee was interviewed in person with
a Supervisory Safety Specialist/Response Team Leader. The complainant
was interviewed only by the Selecting Official over the telephone.
The Selecting Official indicated she selected the Selectee because he
�exceeded� in communication and writing skills; he had the best responses
to the interview questions, he �exceeded� in knowledge of the OSHA Act,
Field Operations Manual, standards and technical guidance; he had been a
team leader on a major facility, receiving the Secretary's Exceptional
Achievement Award; he had a good working knowledge of OSHA's recent
National Emphasis Programs; he �exceeded� in effective relationships with
others at all levels of the government and private sector; he �exceeded�
in his ability to evaluate field and case work performance of OSHA's
compliance officers and through his answers to questions he showed the
ability to develop and motivate staff, to be a team leader and player.
AJ Decision at 5, citing to Investigation Report, Exhibit F2 at 2-3.
The Selecting Official additionally indicated that the Selectee also had
experience as an Industrial Hygiene Supervisor and Strategic Intervention
Team Leader and assumed all duties of the position, including discussions
with higher level department management, technical experts, employees,
union officials and employers. AJ Decision at 6.
In contrast, according to the Selecting Official, �the Complainant's
answers to the interview questions showed that he had little experience
with the Agency's Redesign process and/or in working in teams, in
particular the Response and Strategic Intervention Teams.� Id. at 5.
The Selecting Official also indicated that the complainant's experience
since 1995 had been largely limited to working in State Plan area offices,
where he monitored the effectiveness of the State Plans and conducted
few enforcement inspections. Id. at 6.
With respect to complainant's allegation of reprisal, he indicated that
he had engaged in various EEO activities, including filing a complaint in
1983-84 against the agency's regional administrator and deputy regional
administrator for their failure to select/�re-promote� him to a GS-13
Safety Supervisor position he held previous to an agency reduction in
force in 1984. Complainant also indicated that his non-selection was in
reprisal for his past involvement in union, MSPB, and whistle blowing
complaints to the Inspector General, Special Counsel, the Secretary of
Labor, and one of Ohio's United States Senators.
After considering the agency's Motion for a Decision Without Hearing,
the agency's brief in support, and complainant's response, the AJ found
that there were no issues of material fact or credibility in dispute
necessitating a hearing in this matter. The AJ thus found that the
allegations of discrimination would be adjudicated on the record.
In proceeding to the merits of the case, the AJ found that complainant
failed to establish a prima facie case. The AJ found that complainant
failed to establish that the Selecting Official knew of his age, national
origin, or prior EEO activity. The AJ pointed out that the Selecting
Official averred that she had no knowledge of the complainant's age or
prior EEO activity, and that she did not consider the complainant's age,
national origin, or prior EEO activity in making her selection. The
Selecting Official also stated that when she interviewed complainant
over the telephone, she did not ask him about his age.
The AJ further found that even assuming arguendo that complainant
was able to establish a prima facie case, the agency articulated two
legitimate nondiscriminatory reasons for complainant's nonselection:
(1) that the Selectee was better qualified than complainant; and (2)
the agency did not want the complainant to obtain a supervisory position
based on his past performance as a supervisor.
In its FAD, the agency adopted the AJ's decision.
On appeal, complainant contends that the Selecting Official lied, when
she stated she did not know complainant's age. Complainant argues the
Selecting Official knew from his SF-171, his date of birth. Complainant
also argues that the Selecting Official indicated she carefully reviewed
all of the applications. Complainant thus requests that the case be
sent back to the AJ for a hearing to assess the credibility of the
Selecting Official. The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
Whether a Hearing was Necessary
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. 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 does not
sit as a fact finder. Id. 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. A disputed 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 under Title VII, an AJ
may properly consider summary judgment only upon a determination that
the record has been adequately developed for summary disposition.
Complainant, on appeal, essentially argues that a hearing was necessary,
in order to determine whether the Selecting Official knew that complainant
was over 40 for purposes of establishing a prima facie case of age
discrimination. For purposes of considering the merits of this case, we
will assume arguendo that the Selecting Official knew that complainant
was over 40. As discussed, infra, accepting complainant's view that
the Selecting Official knew that complainant was over 40, nevertheless,
does not support reversing the AJ's decision to render a decision without
a hearing. Complainant did not dispute any of the AJ's other findings
or any other of the Selecting Official's specific testimony, involving
her credibility.
Disparate Treatment Allegations (National Origin and Age)
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). See also Loeb v. Textron, 600 F.2d
1003 (1st Cir. 1979) (requiring a showing that age was a determinative
factor, in the sense that "but for" age, complainant would not have
been subject to the adverse action at issue). A complainant must
first 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 reason was a factor in the
adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). Next, the agency must
articulate a legitimate, nondiscriminatory reason for its action(s).
Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).
After the agency has offered the reason for its action, the burden returns
to the complainant to demonstrate, by a preponderance of the evidence,
that the agency's reason was pretextual, that is, it was not the true
reason or the action was influenced by legally impermissible criteria.
Burdine, 450 U.S. at 253; St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
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). Complainant
may also set forth evidence of acts from which, if otherwise unexplained,
an inference of discrimination can be drawn. Furnco, 438 U.S. at 576.
The established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the agency's
actions were motivated by discrimination. U.S. Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-14 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900159 (June 28, 1990).
Even assuming arguendo that complainant has established a prima facie
case, the agency has articulated a legitimate, nondiscriminatory reason
for its failure to promote and select complainant for the Supervisory
GS-13 position, i.e., that complainant was not as well qualified as
the Selectee. The Commission notes that in nonselection cases, pretext
may be found where the complainant's qualifications are demonstrably
superior to the selectee's. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th
Cir. 1981). However, an employer has the discretion to choose among
equally qualified candidates. Canham v. Oberlin College, 666 F.2d 1057,
1061 (6th Cir. 1981). Additionally, an employer has greater discretion
when filling management level or specialized positions. Wrenn v. Gould,
808 F.2d 493, 502 (6th Cir. 1987).
Complainant has not shown pretext. The Selecting Official gave a detailed
justification why she chose the Selectee, and not complainant. On appeal,
complainant did not address or dispute that justification.
Retaliation
As discussed above, in general, claims alleging disparate treatment under
Title VII are examined under the tripartite analysis first enunciated
in McDonnell Douglas Corporation v. Green, supra;
Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F.Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to reprisal cases).
To establish a prima facie case of reprisal discrimination, complainant
must show that (1) he engaged in prior protected activity; (2) the
acting agency official was aware of the protected activity; (3) he was
subsequently disadvantaged by an adverse action; and (4) there is a
causal link. The causal connection may be shown by evidence that the
adverse action followed the protected activity within such a period of
time and in such a manner that a reprisal motive is inferred. Simens
v. Department of Justice, EEOC Request No. 05950113 (March 28, 1996)
(citations omitted). "Generally, the Commission has held that nexus may
be established if events occurred within one year of each other." Patton
v. Department of the Navy, EEOC Request No. 05950124 (June 27, 1996).
Complainant does not dispute the AJ's finding that the Selecting
Official did not know about complainant's prior protected EEO activity.
Accordingly, we agree with the AJ that complainant did not establish a
prima facie case of retaliation.
Even assuming arguendo that complainant established a prima facie case,
it is undisputed that the agency has articulated the same legitimate
nondiscriminatory reasons for not selecting complainant, as with the
disparate treatment claim. The Commission may thus proceed to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the agency's
actions were motivated by discrimination. U.S. Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-14 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900159 (June 28, 1990).
Complainant has not shown pretext. The Selecting Official gave a detailed
justification why she chose the Selectee, and not complainant. On appeal,
complainant did not address or dispute that justification. Accordingly,
the Commission finds that the evidence supports the AJ's finding that
the agency did not engage in reprisal discrimination.<1>
CONCLUSION
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 FAD.
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
March 27, 2001
Date
1 Our ruling is limited to EEO-based protected activity. The Commission
does not have jurisdiction to consider whether the agency retaliated
against complainant on non-EEO-based protected activity. The Commission
therefore does not address complainant's allegations of retaliation
involving his union, MSPB, and whistle blowing complaints to the
Inspector General, Special Counsel, the Secretary of Labor, and one of
Ohio's United States Senators.