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

Equal Employment Opportunity Commission

Sep 21, 2018

0120160181 (E.E.O.C. Sep. 21, 2018)

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

Chad R.,1
Complainant,

v.

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

Appeal No. 0120160181

Agency No. TVA-2014-0084

DECISION

On October 14, 2015, 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 21, 2015, 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.

BACKGROUND

Complainant was hired at an entity affiliated with the Agency called “TVA Synterprise Group” on
May 11, 1998. He was informed in writing that the position he was hired into was a temporary
intermittent hourly position and that he would be paid an hourly rate of $35, which would work
out to $72,800 if he worked 40 hours per week for 52 weeks. He was not guaranteed full-time
work, however. Rather, he was paid when his services were needed. The record does not reflect
how many hours Complainant worked or how much he was paid from May 11, 1998 to May 28,
1999. Investigative Report (IR) 116.

The Agency disbanded the Synterprise Group on May 28, 1999. The following day, Complainant
was hired as a Program Administrator, SD-3, in TVA’s River Systems Operations & Engineering

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.
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Group (RSO&E) at an annual salary of $56,760. The position was an administrative position as
opposed to an engineering position. His primary responsibility was to coordinate technical issues
arising out of the Y2K computer situation with the Agency’s technical personnel and equipment
manufacturers. The salary for the position was determined by the Agency’s Human Resource
organization which evaluated the job description in accordance with a salary schedule negotiated
between the Agency and its representative union. Complainant was informed what the salary was
at the time he was offered the job. He remained in this position until 2008, when he was promoted
to Program Manager for the Corrective Action Program (CAP) in Reservoir Operations and
received a pay raise upwards of $5,000. In 2011, he was selected for the position of CAP Program
Manager for the unfinished Bellefonte nuclear power plant in Alabama and given another raise.
IR 113. 119, 198; Final Agency Decision (FAD), p. 3.

On December 11, 2014, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of race (African-American) and national origin (Hispanic)
by not giving him equal pay with respect to Caucasian engineers who were hired by the Agency
from Synterprise on the same day that he was.2 He based his allegation of unequal pay upon his
assertion that his annual salary was reduced from $72,800 in the job he had with Synterprise to
$56,760 when he took the job with the RSO&E Group, and upon the fact that there were Caucasian
employees within the RSO&E Group who were making more money than him. The Agency noted
that, like Complainant, many employees of Synterprise had taken a salary cut in order to secure
permanent employment with the Agency. FAD, pp. 2-3.

At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of
the investigative report and notice of his right to request a hearing before an EEOC Administrative
Judge (AJ). On July 30, 2015, Complainant, through his representative, waived his right to a
hearing and requested a final decision from the Agency. In accordance with Complainant’s
request, the Agency issued its final Agency decision (FAD) pursuant to 29 C.F.R. § 1614.110(b).
The decision concluded that Complainant failed to prove that the Agency subjected him to
discrimination as alleged.

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 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”).

2 Complainant identified Hispanic as a racial group. The Commission considers the term Hispanic
as a term describing a national origin category.
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We note that the Agency stated in its final decision that, in the alternative, the complaint should
have been dismissed for Complainant’s untimely contact with an EEO counselor. For purposes of
analysis, we will assume that Complainant timely contacted the counselor.

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). As a first step, he must generally establish a prima facie case by demonstrating
that he was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). 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). To ultimately prevail,
Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is
pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell
Douglas, 411 U.S. at 802 n. 13. Where pay is at issue, as in this complaint, Complainant may
establish a primary case of race discrimination by showing that similarly situated White or non-
Hispanic employees were paid a higher salary than he was. See Wilcox v. Tennessee Valley
Authority, EEOC Request No. 05920176 (April 23, 1992). We will assume, as did the Agency,
that Complainant established a prima facie case of race and national origin discrimination with
regard to the alleged pay disparity at issue.

The Agency’s articulated reason for the alleged salary reduction was that Complainant was given
an opportunity to secure permanent employment, the alternative to which was to be terminated by
a reduction-in-force action. Complainant applied for and was selected for the Program Manager
position, and was informed what the salary would be when he accepted the job. The salary itself
was determined in accordance with a salary schedule negotiated between the Agency and the
union. This is sufficient for the Agency to satisfy its obligation under the disparate treatment
framework.

Complainant retains the ultimate burden of persuasion to prove that the Agency’s reason is a
pretext for discrimination on the bases of race and national origin. Pretext can be demonstrated
by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in
the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could
rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Service, EEOC Appeal No.
0120060802 (Nov. 20, 2007), request for reconsideration denied, EEOC Request No. 0520080211
(May 30, 2008).

In support of his claim, Complainant presents the affidavits of two African-American colleagues
who were hired from Synterprise along with him. Complainant maintains that they, and other
minority employees were paid less than White employees who were hired on the same day that
they were, May 29, 1999. However, neither Complainant nor the two African-Americans had
engineering degrees or had held engineering positions.
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By contrast, the White comparators that Complainant cites were degreed engineers who had held
engineering positions at the Agency for more than ten years. The White comparators did not work
for Synterprise nor were they hired by the Agency on the same day as Complainant. IR 140, 150,
198, 305-06, 465-73, 495-506. Moreover, it is not even clear from the record whether Complainant
had actually worked enough hours to earn $72,800 between May 1998 and May 1999. He has not
shown that he had actually made less money after he was hired for the permanent position in May
1999.

Apart from his own unsupported assertions and those of the two African-Americans who were
hired by the Agency along with him on May 29, 1999, Complainant has presented neither
affidavits, declarations, or unsworn statements from witnesses other than himself nor documents
that actually contradict the explanations provided by the Agency’s managers and human resource
officials or call their veracity into question. Instead, Complainant argues that the Agency failed to
conduct an unbiased investigation and had fraudulently concealed information from the EEO
investigator. Appeal Brief, pp. 4-5. However, to the extent that Complainant had questions
regarding the conduct or completeness of the EEO investigation, he could have requested a hearing
before an AJ. Yet, he chose not to. As a result of Complainant’s choice, the Commission does
not have the benefit of an Administrative Judge’s credibility determinations after a hearing.
Therefore, the Commission can only evaluate the facts based on the weight of the evidence
presented. Based upon the weight of that evidence, we find, as did the Agency, that Complainant
failed to prove that his race or his national origin were factors in the salary that he received when
he was hired as a Program Manager in May 1999.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s
final decision finding that Complainant did not establish that he was discriminated against as
alleged.

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.
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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.

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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

September 21, 2018
Date