Alfred Dyson, Complainant,v.Tom Kilgore, President and Chief Executive Officer, Tennessee Valley Authority, Agency.

Equal Employment Opportunity CommissionOct 28, 2009
0120091809 (E.E.O.C. Oct. 28, 2009)

0120091809

10-28-2009

Alfred Dyson, Complainant, v. Tom Kilgore, President and Chief Executive Officer, Tennessee Valley Authority, Agency.


Alfred Dyson,

Complainant,

v.

Tom Kilgore,

President and Chief Executive Officer,

Tennessee Valley Authority,

Agency.

Appeal No. 0120091809

Agency No. 01312006018

DECISION

On March 14, 2009, complainant filed an appeal from the agency's February

13, 2009 final decision concerning his equal employment opportunity (EEO)

complaint alleging 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 deemed timely and is

accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,

the Commission affirms the agency's final decision.

ISSUES PRESENTED

The issue presented herein is if the agency's final decision properly

found that complainant failed to establish his claim of discrimination on

the bases of race and/or age when he was not selected for two positions.

BACKGROUND

At the time of events giving rise to this complaint, complainant

worked as a Maintenance Supervisor at the agency's Allen Fossil Plant.

On January 31, 2006, complainant filed an EEO complaint alleging that he

was discriminated against on the bases of race (black) and age (57 years

of age at the time) when complainant was not selected for the following

positions:

1) Vacancy Position Announcement No. 0000021459 (hereinafter

"Position 1"), Manager, Chemical Environmental, Nuclear Operations, Browns

Ferry Nuclear Plant, posted June 28, 2005, and closed July 7, 2005, and

2) Vacancy Position Announcement No. 0000021422 (hereinafter

"Position 2"), Project Manager, Fossil Engineering and Technical Services,

Watts Bar Nuclear Plant, posted June 14, 2005, and closed on June 14,

2005.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of his right to request

a hearing before an EEOC Administrative Judge (AJ). When complainant

did not request a hearing within the time frame provided in 29 C.F.R. �

1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �

1614.110(b). The decision concluded that complainant failed to prove

that he was subjected to discrimination as alleged.

CONTENTIONS ON APPEAL

Complainant, on appeal, asserts that the agency has low representation

of minorities in upper levels of management. Further, he argues that

the agency does not actively identify minorities for career development.

Therefore, complainant claims that he was improperly not selected for

the positions in question. As to the positions in question, complainant

contends that hew as not given a reason for not receiving Position 1.

As to Position 2, complainant indicates that he was qualified for the

position but was not interviewed because he was not identified as a

"top candidate." Complainant argues that the agency failed to take into

consideration his Professional Engineer License.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant

to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo

review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management

Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that

the de novo standard of review "requires that the Commission examine

the record without regard to the factual and legal determinations of

the previous decision maker," and that EEOC "review the documents,

statements, and testimony of record, including any timely and relevant

submissions of the parties, and . . . issue its decision based on the

Commission's own assessment of the record and its interpretation of

the law").

In the absence of direct evidence of discrimination, the allocation of

burdens and order of presentation of proof in a Title VII case alleging

discrimination is a three-step process. McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation

for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),

aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to

retaliation cases). First, complainant must 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 consideration was a factor in the adverse employment action.

McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a

legitimate, nondiscriminatory reason(s) for its actions. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency

is successful, then the complainant must prove, by a preponderance of

the evidence, that the legitimate reason(s) proffered by the agency was

a pretext for discrimination. Id. at 256.

Upon review of the record, the agency has provided legitimate,

nondiscriminatory reasons for its actions. As to Position 1,

the Chemistry Manager averred that the agency decided not to fill

the position; therefore, no selection was made. The Human Resources

Consultant (HR Consultant) indicated that management wanted the Chemistry

Manager to assume the duties of Position 1. Therefore, there was no need

to backfill the position. As for Position 2, the record indicates that

two individuals were hired to fill the posts. The agency showed that

based on the position selection matrix, complainant met the minimum

qualifications. However, the agency interviewed those who received

superior scores on the matrix. Upon review, we find that the agency met

its burden. Complainant must now show that the agency's reasons were

pretext for discrimination. We find that complainant failed to do so.

Therefore, we find that complainant failed to show that the agency's

actions were discriminatory.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, we affirm the agency's

final decision finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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 (S0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

October 28, 2009

__________________

Date

2

0120091809

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

4

0120091809