0120131406
09-25-2015
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
Complainant,
v.
Bill Johnson,
President and Chief Executive Officer,
Tennessee Valley Authority,
Agency.
Appeal No. 0120131406
Agency No. 0420-2009040
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant's appeal from the Agency's February 7, 2013 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.
BACKGROUND
During the period at issue, Complainant worked as a Maintenance Coordinator at the Agency's Electrical Maintenance Department, Shawnee Fossil Plant in Paducah, Kentucky.
On April 20, 2009, Complainant filed an EEO complaint alleging the Agency discriminated against him on the basis of race (African-American) when, in February 2009, he was not selected for the position of Maintenance Supervisor at the Shawnee plant.
Complainant later requested that the Agency amend his complaint to include the a claim that he was unlawfully retaliated against when he was removed from his Coordinator position and reassigned to another position within days of management being notified that he was pursuing EEO counseling concerning his non-selection.
The record shows that the EEO Counselor sent an email to a Human Resources Consultant on March 26, 2009, to obtain Agency management's response to Complainant's allegations concerning his non-selection. Complainant alleged that on the same day (March 26, 2009), he was approached by a Maintenance Supervisor notifying him that he would be reassigned to the Atmospheric Fluidized Bed Combustion (AFBC) plant to work as a Maintenance Crew Coordinator. Complainant started that during the relevant period, there had been no mention of a move until the Maintenance Supervisor approached him. Furthermore, Complainant stated that two days later, he was moved from his long term position to the new position at the APBC plant.
The record reflects that the Agency failed to amend the Complainant's non-selection complaint to include the retaliation/reassignment claim.
After the investigation of the non-selection claim, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on September 30, 2009, pursuant to 29 C.F.R. � 1614.110(b). In its final decision, the Agency found no discrimination concerning Complainant's non-selection, but did not address his reassignment claim.
On appeal, the Commission reversed the Agency's final decision, concluding Complainant had been subjected to discrimination based on his race when he was not selected for the Maintenance Supervisor position. Duncan v. Tennessee Valley Administration, EEOC Appeal No. 0120100344 (December 14, 2011), request for reconsideration denied, EEOC Request No. (November 9, 2012). The Commission ordered the Agency to offer Complainant the Maintenance Supervisor position at the Shawnee Fossil Plant retroactive to the date of the non-selection, in or about February 2009. Among other remedies, the Agency was also ordered to provide back pay, compensatory damages and attorney's fees.1
The Commission also found that the Agency did not properly amend the complaint to include a separate claim regarding a reassignment. This claim was sent back and the Agency was ordered to investigate and further process it.
During the investigation conducted pursuant to the remand order, the Maintenance Supervisor (Supervisor), also Complainant's supervisor, stated that he was the deciding official to reassign Complainant to the AFBC "because we had a recent vacancy for that coordinator position." Specifically, the Supervisor stated that the AFBC plant was "very complex, very large in nature. It was rather unique to Shawnee and, really, the world. And it required sometime with a good degree of intellect and skill. [Complainant] was experienced with working at that unit. He had worked there for a few years earlier as an electrician. So, he was familiar with that area. And, so, that was very important, someone that knew their way around and could find equipment and be able to identify where equipment was. And, [Complainant], I felt, was the best qualified person for that position."
Further, the Supervisor stated at that time there were four new Coordinators, but he did not feel comfortable with the idea of placing a new hire in the AFBC Coordinator position "because of the complexity of the unit. And, also this unit being at the opposite end of the office wring, that person wouldn't, a new hire would need regular support from some of his peers in order to answer questions and be able to learn their job. But, I wanted someone with experience in coordinating within that plant to work in that position."
The record reflects when asked by the investigator if he consulted with Complainant's former supervisor before making the decision to reassign Complainant, the Supervisor stated "I wouldn't say I consulted with [former supervisor]. We did have a conversation where we discussed where - - we had recently hired four new coordinators and we had discussed possibilities where people would be positioned."
Complainant asserted that the Supervisor placed a named employee (Coordinator A), one of the new four hires, in his former coordinator position in the Electrical Department. On this point, the Supervisor stated, "I didn't want to move a person who was a new select in the coordinator's position through the AFBC unit because of its complexity and the importance of our unit to the plant. And, I didn't know of any experience he may or may not have had at the AFBC."
The record reflects that when the investigator informed the Supervisor that she checked with Coordinator A and he confirmed he had prior experience working at the AFBC plant. The Supervisor stated, "yeah, I know that was a different candidate, but I selected [Complainant] as the person I felt was the best qualified."
Complainant's former supervisor stated that in March 2009, he left the Shawnee facility for the Agency's Chattanooga, Tennessee facility to work as a Corporate Functional Area Manager. When asked by the investigator if he left the Shawnee facility after Complainant filed his complaint, the former supervisor stated "I don't think that I had found out that he had filed a complaint until after I had already started my job in Chattanooga. And, I really couldn't say - - I really don't know what date he filed the complaint, what the date was."
Further, the former supervisor stated that during the relevant period he was not aware that Complainant "was moved to a new position. And, I don't know what date he filed the complaint. I do know that I left for Chattanooga, it was in the last ten days of March [2009]." Moreover, the former supervisor stated that he was aware of Complainant's prior protected activity because he was the selecting official for the Maintenance Supervisor position at Shawnee.
The Electrical Foreman (Foreman) stated that during the relevant period he knew Complainant because they worked together. Specifically, the Foreman stated he met Complainant sometime in early 1980, and "then that [Complainant's] working at Shawnee, I was being the Electrical Department. So, he and I worked hand-in-hand quite a bit." The Foreman stated that he was surprised that Complainant was reassigned to the AFPC "because that was not a desirable place to be because of the conditions and also in his situation taking a person [like Complainant] who was had a strong, strong electrical background and a very very minor background in the mechanical area and moved to the area to be a coordinator was to me, didn't make any sense and kind of turned my heard like what's going on here?"
The record reflects when asked by the investigator how he got Complainant's former Coordinator position, the Maintenance Coordinator stated "I have no idea. I was just - - whenever I took the coordinator's position, I wasn't told what crew I'd be assigned to. One day I was just informed - - I can't even remember who told me, if it was [supervisor], which I'm pretty sure it probably was - - told me that I would be over the electricians and that [Complainant] was going to the AFBC. Up until that point, I knew nothing about it. So far as how I got my job, I mean I interviewed like everybody else and then I was chosen for the electric shop."
Following the investigation, the Agency issued a decision on February 7, 2013, concerning Complainant's reassignment claim which is the subject of the instant appeal.2
In its February 7, 2013 final decision, the Agency found no discrimination. The Agency found that Complainant failed to establish a prima facie case of reprisal discrimination because he did not prove a nexus between his prior protected activity and his reassignment. The Agency nevertheless found that Agency management articulated legitimate, nondiscriminatory reasons for its actions which it concluded Complainant failed to show were a pretext.
The instant appeal followed.
ANALYSIS AND FINDINGS
Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate treatment discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Third, should the Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
A review of the evidence of record shows that Complainant established a prima facie case on his claim that he was reassigned to the AFBC plant in retaliation for his EEO contact on his non-selection. Specifically, Complainant showed that: (1) he engaged in protected EEO activity by seeking EEO counseling on his non-selection claim; (2) management was aware of his protected activity as result of being informed by the EEO counselor; (3) he was reassigned to the ARBC plant following his EEO contact; and (4) the reassignment occurred only two days after management was informed of his EEO challenge to his non-selection. This is sufficient to raise an inference of unlawful retaliation. See Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
The Agency rebutted that initial inference by articulating legitimate, non-retaliatory reasons for the reassignment. Specifically, the Supervisor stated that Complainant was reassigned to the AFBC plant because he was the most qualified Maintenance Coordinator available.
The burden returns to Complainant to prove, by a preponderance of the evidence, that the articulated reason for his reassignment was pretext designed to mask the true retaliatory motivation. After careful review of the evidence of record, we conclude that Complainant has met this burden.
First, Complainant has testified, without dispute, that there had been no mention of a move to the AFBC plant before he sought EEO counseling on his non-selection. Moreover, Complainant was notified that he would be reassigned to the AFBC plant on the same day that management was notified of his EEO contact. Following this notice, Complainant was indeed abruptly reassigned to the AFBC plant two days later, with absolutely no advance notice.
Second, Complainant's former supervisor admitted he was aware of Complainant's EEO activity because he had been the selecting official for the Maintenance Supervisor position that Complainant was not selected for. The record reflects that while Complainant's former supervisor asserted that he left the Shawnee facility sometime in the last ten days of March, he was at the Shawnee facility at the time of Complainant's reassignment. When asked by the investigator if he consulted with Complainant's former supervisor before taking the action to reassign Complainant, the Supervisor (who officially made the reassignment decision) acknowledged he "had a conversation" with the former supervisor about where the four new coordinators would be assigned.
Third, the Agency's rationale that Complainant was the best qualified for the AFBC position is placed in further doubt due to the testimony of the Foreman. The Foreman asserted that Complainant's reassignment to the AFBC plant did not add up because while Complainant had extensive electrical work experience needed for his long-held position, he had limited mechanical experience which was required to work in the AFBC plant.
Finally, the record reflects that one of the new coordinators, who was placed in Complainant's former position, testified that he had previously worked at the AFBC plant.
Based on these factors, we conclude that Complainant has proven that it was more likely than not that his reassignment was not due to operational needs, but was made in retaliation for his EEO challenge to his non-selection.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, the Agency's final decision is REVERSED and REMANDED for compliance with this decision and the ORDER below.
ORDER
The Agency is ordered to take the following actions:3
1. Within one hundred and twenty (120) calendar days from the date this decision becomes final, the Agency is ordered to conduct a supplemental investigation into and determine Complainant's entitlement to compensatory damages as a result of his retaliatory reassignment. The Agency shall issue a final decision on compensatory damages with appeal rights to the Commission.
2. Within thirty (30) calendar days from the date this decision becomes final, the Agency is ordered to post at its Shawnee Fossil Plant in Paducah, Kentucky, copies of the notice discussed below.
3. The Agency shall provide EEO training to the responsible management officials with special emphasis on their obligations to avoid any actions which might deter employees from engaging in protected EEO activity.
4. The Agency shall strongly consider taking appropriate disciplinary action against the responsible management officials involved in the unlawful retaliation. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the compliance officer referenced below. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take
disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency, the Agency shall furnish documentation of their departure date(s).
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
POSTING ORDER (G0914)
The Agency is ordered to post at its Shawnee Fossil Plant in Paducah, Kentucky, copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii), he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency - - not to the Equal Employment Opportunity Commission, Office of Federal Operations - - within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 Complainants 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 25, 2015
__________________
Date
1 The Commission thereafter issued a decision on the Agency's February 5, 2013 final decision concerning attorney's fees and costs, and the Agency's April 8, 2013 final decision concerning compensatory damages. Duncan v. Tennessee Valley Authority, EEOC Appeal Nos. 0120133384 and 0120133385 (September 15, 2015).
2 Complainant did not request a hearing before an Administrative Judge, and had previously requested that the Agency issue a final decision.
3 Usually, we would order that Complainant be returned to the Maintenance Coordinator position held prior to his reassignment to the AFBC position. However, in EEOC Appeal No. 0120100344, the Commission already ordered the Agency to offer Complainant the Maintenance Supervisor position at the Shawnee Fossil Plant retroactive to the date of his non-selection in February 2009.
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