0120170229
07-18-2018
Byron E.,1 Complainant, v. Bill Johnson, President and Chief Executive Officer, Tennessee Valley Authority, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Byron E.,1
Complainant,
v.
Bill Johnson,
President and Chief Executive Officer,
Tennessee Valley Authority,
Agency.
Appeal No. 0120170229
Agency No. TVA-2013-0052
DECISION
On October 11, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's September 27, 2016, 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. For the following reasons, the Commission AFFIRMS the Agency's final decision (FAD) which found that Complainant did not demonstrate that he was subjected to race discrimination when he was not selected for a position.
ISSUE PRESENTED
The issue presented is whether the Agency's FAD erred in finding that Complainant was not subjected to discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Fossil Mechanical Technician III at the Agency's Colbert Fossil Plant in Alabama. Complainant applied for one of two Nuclear Mechanical Technician II (Maintenance), positions at the Agency's Browns Ferry Nuclear Plant, in Alabama. Complainant maintained that the Browns Ferry Nuclear Plant has never hired Black applicants. Complainant was one of the top four scoring candidates so he was interviewed by a three-member panel. The panel (all white), asked each applicant the same ten questions. Prior to the interviews, Complainant was ranked second. Following the interview, he was ranked third. The two highest scored applicants, both white, were selected for the position. Complainant maintained that he was better qualified than the selectees. He argued that the scoring was flawed, and that he should have received a higher score in several categories.
On April 16, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on race (African-American) when, on February 15, 2013, he learned that he was not selected for one of two available positons of Nuclear Mechanical Technician II (Maintenance) under Requisition No. 1000011671.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The December 12, 2013, decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant appealed the decision to the Commission. In Complainant v. Tennessee Valley Authority, EEOC Appeal No. 0120140939, (June 9, 2016), the Commission found that the record was not complete as pertinent questions had not been asked or followed up on, pages of documents were missing, and, among other things, the entire application packages for the candidates interviewed were not provided in the investigative record. The Commission vacated the Agency's decision and remanded the matter for a supplemental investigation and directed the Agency to issue a new decision.
The Agency's FAD, issued on September 27, 2016, found that Complainant established a prima facie case but did not show that the Agency's articulated legitimate, reasons were pretext for discrimination. Specifically, Complainant asserted that he was better qualified than the selectees because of the training programs he completed, his multi-skill qualifications, his experience working on capital projects for the Agency, his status as a permanent Agency employee, and his knowledge of Primavera and Agency scheduling. The Agency found that it gave Complainant credit for his experience and education but he did not do as well as the selectees during the interview and that was where he lost points. The Agency explained that the selectees gave full and complete answers to questions while Complainant's answers were brief and lacked detail. The Agency also noted that the selectees had experience with aspects of the Nuclear process that Complainant did not.
With respect to Complainant's allegation that there had been no African-American boilermakers hired at Browns Ferry Nuclear Plant. The selecting official indicated that this was the first boilermaker position that he filled; however, he has hired minorities before and that there were currently several level three and four mechanics in the mechanical shop who are African-American. The Agency maintained that statistical data available for January 1, 2011 through July 12, 2016, revealed that 9.3% of external hires for Browns Ferry Nuclear Plant are Black. Further while there were no Black boilermakers, there were African-American employees at Browns Ferry Nuclear Plant in upper-level positions.
The Agency maintained that Complainant was not selected for the position because he was ranked third place and only the top two applicants were selected. Complainant, the Agency indicated, did not show that the Agency's articulated reasons were pretext for discrimination.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that Browns Ferry Nuclear Plant began commercial operation on December 20, 1973, and, to this day, has never hired an African-American Boilermaker. In fact, the Plant currently has only four African-American employees, according to Complainant. Complainant also asserts that 18-white employees from Colbert Fossil Plant got jobs at the Plant and yet the selecting official indicated that the skills that were gained in fossils fuels were not applicable to nuclear energy.
Complainant also contends that he was the only applicant who had completed a Tennessee Valley Authority Fossil Multi-Skill training program and a Boilermaker Apprenticeship so therefore he should have been awarded the full educational rating. Complainant also indicates that one of the panel members was friends with the selectees so that gave them an unfair advantage. Complainant maintains that the hiring process was set up to give managers too many subjective findings.
In response, the Agency contends, among other things, that it articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was not selected for the position because the two highest scoring applicants were selected and Complainant was the third highest applicant. The Agency maintained that as compared to the selectees, Complainant did not do as well during the interview as, he failed to fully answer several of the questions. The Agency also maintained that Complainant received the correct score regarding his educational experience, as his Agency certifications did not equal college education as the ranking scale specified. Further, the selecting official indicated that favoritism was not a factor in the selection process. The Agency maintains that discrimination was not involved in this case as Complainant did not demonstrate that its nondiscriminatory reasons were pretext for discrimination.
ANALYSIS AND FINDINGS
Standard of Review
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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (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").
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he 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 consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that assuming arguendo that Complainant established a prima facie case of race discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that the two highest scoring applicants were selected for the positions. Complainant was ranked third and therefore was not chosen. However, in the instant case, we find that Complainant has not shown that discriminatory animus was involved in this selection. With the information provided in the supplemental investigation, we find the matrix is more clearly explained and while interview ratings can be very subjective, we find that Complainant did not demonstrate that his race was considered.2
Moreover, with regard to Complainant's contentions on appeal, we find that other than his conclusory statements he provided no evidence which showed that his race or discriminatory animus was involved in the selection. We also find that Complainant has not shown that he is so better qualified than the selectees that discrimination can be inferred. Complainant did not demonstrate that the Agency's articulated, legitimate reasons were pretext for discrimination.
CONCLUSION
Accordingly, the Agency's FAD which found that Complainant did not demonstrate that he was subjected to discrimination is AFFIRMED.
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 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
__7/18/18________________
Date
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 Commission notes that while Complainant appears to raise a disparate impact claim and the Agency provided some statistical information in response, such a claim was not accepted for investigation and not addressed in this decision.
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