Alfonzo M.,1 Complainant,v.Bill Johnson, President and Chief Executive Officer, Tennessee Valley Authority, Agency.

Equal Employment Opportunity Commission

Nov 29, 2018

0120172814 (E.E.O.C. Nov. 29, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Alfonzo M.,1
Complainant,

v.

Bill Johnson,
President and Chief Executive Officer,
Tennessee Valley Authority,
Agency.

Appeal No. 0120172814

Agency No. TVA-2017-0001

DECISION

On August 18, 2017, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s July 20, 2017 final decision concerning an equal employment opportunity (EEO)
complaint claiming 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.

BACKGROUND

During the period at issue, Complainant was a Pipefitter/Steamfitter for a company identified as
Gubmk Constructors (hereinafter referred to as GUBMK), which worked under a contract with
the Agency. Complainant worked at the Agency’s Tennessee Valley Operations (TVA)
Operations, Resources River Management Infrastructure in Knoxville, Tennessee. 2

On November 19, 2016, Complainant filed the instant formal complaint. Complainant claimed
that the Agency discriminated against him based on race (Caucasian) when:

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.

2 The Agency acknowledges that though a “contractor” Complainant remained under the control
of the Agency, and was an Agency “employee” for purposes of this case. We will therefore
address Complainant’s claim on the merits in the instant appeal.
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on or about October 5, 2016, his security clearance was disapproved because of
felony convictions, causing him to be terminated from his employment with
GUBMK.

Complainant alleged that a named employee, also from GUMMK and working with the Agency,
was permitted to remain as an employee.

After the investigation of the formal complaint, Complainant was provided with a copy of the
report of the investigation and with a notice of the right to request a hearing before an EEOC
Administrative Judge or a final decision within thirty days of receipt of the correspondence.
Complainant did not respond.

In its July 20, 2017 final decision, the Agency found no discrimination based on the evidence
developed during the investigation.

The instant appeal followed. Complainant did not submit a brief on appeal.

ANALYSIS AND FINDINGS

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

This 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. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Agency management articulated legitimate, nondiscriminatory reasons for its actions, as more
fully discussed below.
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Complainant had worked intermittently as a contractor for GUMBK since 2014. On October 5,
2016, Complainant was notified that his security clearance was revoked and as a result, he was
escorted off the work site. At that time, Complainant was not provided an explanation as to why
his security clearance was revoked. He was, however, given a telephone number to call TVA
security. Complainant called the number requesting an explanation for the revocation of his
security clearance, and he later received a letter in the mail stating that his 2013 felony
conviction precipitated the Agency action.

The record reflects that Complainant’s security clearance was retroactively revoked for a five-
year period starting on the date of his 2013 felony conviction. Subsequently, Complainant was
terminated from his contract employment with TVA as he had no clearance. GUMBK works
under a contract with the Agency to work on TVA projects and as a result, Complainant was
released from his contract with GUBMK.

The Agency’s Manager of Access Services (Caucasian) is responsible for access control, which
determines who has access to TVA facilities and issue badges for access. The Manager stated
that she is responsible for the Personnel Security group at TVA which determines the suitability
of contractors and TVA employees to ensure they meet standards set by the Office of Personnel
Management and TVA. The Manager stated that the Personnel Security group at TVA evaluates
individuals’ fingerprints to ensure they meet qualifications and requirements as well as issue
clearances.

Further, the Manager explained that the TVA has a system that all of the contracting companies
use to verify if an individual is eligible to work at TVA. Specifically, the Manager stated that if
the contracting company sees the employee is eligible, the individual would be fingerprinted and
then Personnel Security would adjudicate the fingerprints to determine if the individual is
suitable. The Manager further stated that if the individual meets the suitability requirements, he
or she would be able to work. The Manager stated, however, if they did not meet the suitability
requirements they would not be able to work and an explanation would be given as to why the
clearance was denied

The Manager stated that the disqualifiers for having granted are as follows: three misdemeanors
convictions in the last five years; one felony conviction in the last five years; and two felony
convictions in the last ten years.

The Manager stated that during the relevant period, Complainant did not report his arrest
“therefore, we were unaware of it. When his badge expired after the five-year period and he had
to be reprinted, that’s when we found that he did have felony conviction.”

Complainant asserted that he was treated differently from a named African-American contractor
employee (Contractor 1), who did not have a security clearance revoked even though he had a
criminal conviction. The Manager explained, however, that Contractor 1 was assigned to a TVA
site on August 31, 2014. At that time, he was not considered suitable due to a misdemeanor
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conviction and was not allowed on a TVA site. The Manager further stated that Contractor 1
returned as a contract employee on September 1, 2005, which was after the three-year restriction
period for the misdemeanor had expired. Furthermore, the Manager stated that a review of the
records indicated that Contractor 1 had a felony conviction on July 29, 1993, which was beyond
the “look back” period for TVA Personnel Security.

After careful consideration of the record, we conclude that neither during the investigation, nor
on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered
reasons for the disputed actions were a pretext for unlawful discrimination.

We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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
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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 (S0610)

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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

November 29, 2018
Date