01985771
05-18-2000
Eugene D. Buggs, Complainant, v. Craven H. Crowell, Jr., Chairman, Tennessee Valley Authority, Agency.
Eugene D. Buggs v. Tennessee Valley Authority
01985771
May 18, 2000
Eugene D. Buggs, )
Complainant, )
)
v. ) Appeal No. 01985771
) Agency No. 041097149
Craven H. Crowell, Jr., )
Chairman, )
Tennessee Valley Authority, )
Agency. )
)
DECISION
On July 20, 1998, Eugene D. Buggs (hereinafter referred to as complainant)
filed a timely appeal from the June 12, 1998, final decision of the
Tennessee Valley Authority (hereinafter referred to as the agency)
concerning his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. Complainant received the agency's decision
on June 20, 1998. The appeal is timely filed (see 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.402(a)))<1> and is accepted in accordance with 64 Fed. Reg. 37,644,
37,659 (to be codified as 29 C.F.R. � 1614.405). For the reasons that
follow, the agency's decision is AFFIRMED.
The issue presented in this appeal is whether the complainant has proven,
by a preponderance of the evidence, that the agency discriminated
against him on the bases of race and reprisal when he was not selected
for the position of Systems Engineer, SC-3, or Systems Engineer, SC-4,
in February 1997.
Complainant filed his formal complaint on April 10, 1997. Following an
investigation, he was advised of his right to request a hearing before
an EEOC Administrative Judge or an immediate final agency decision
(FAD). He requested a FAD, and the agency issued its FAD, finding no
discrimination.
At the time of the events herein, complainant worked as a Chemical
Engineer, SC-4, at the Widows Creek Fossil Plant, Stevenson, Alabama.<2>
Due to a revamping of staff duties, the agency was eliminating dedicated
engineer positions, including complainant's position of Chemical Engineer,
and was seeking six Systems Engineers (SE), SC-3 and SC-4, to perform all
engineering duties for the plant. According to the Production Manager of
Performance Engineering and the selecting official (SO), the SE position
was designed to perform all engineering functions and future chemical
needs for the plant would be handled by the Technical Services Analyst
(TSA) position. While the job postings set a minimum qualification of
an engineering degree, the SO explained that the plant's main engineering
needs were for mechanical and electrical work and therefore he sought to
hire four mechanical engineers and two electrical engineers for the SE
positions. When he filled the jobs, however, he filled three SE positions
at the SC-3 level and did not fill any positions at the SC-4 level.<3>
Thirty-two applied and twenty-one candidates were interviewed for the
positions (16 white, three black, and two Asian). After several selectees
declined or withdrew from consideration, the SO chose E1, a mechanical
engineer (white), E2, an electrical engineer (white), and, following a
second posting, E3, a mechanical engineer (black). The SO contended that
complainant's race was not a factor in his non-selection and noted that
an offer had been made to a black applicant who declined and that he did
not select a white civil engineer employee who had also applied. Also,
the SO asserted that he was unaware of complainant's prior EEO activity,
in that, he was not at the plant at that time. The plant's personnel
officer, however, who assisted the SO with procedural details in the
selection process, was aware of complainant's prior EEO activity.<4>
Complainant contended that he met the minimum qualifications and
experience for the position and that the agency's contention that
it sought engineers with mechanical and electrical background was
retaliation and a sham to deny him the position. In his appeal statement,
he contended that the SO must have known of his EEO activity since other
managers would have discussed the settlement with him. He also argued
that the TSA position could not properly perform the chemical engineering
needs of the plant.
In general, claims, such as the complainant's, alleging disparate
treatment are examined under the tripartite analysis first enunciated
in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973).
Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976).
Initially, for complainant to prevail, s/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 Construction Corp. v. Waters,
438 U.S. 567 (1978). Following this established order of analysis is
not always necessary where the agency articulates an explanation for
its actions. In such cases, the factual inquiry can proceed directly to
the third step of the McDonnell Douglas analysis--the ultimate question of
whether complainant has shown by a preponderance of the evidence that the
agency's action was motivated by discrimination. United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-14 (1983).
It is complainant's burden to demonstrate by a preponderance of the
evidence that the agency's action was based on prohibited considerations
of discrimination, that is, its articulated reason for its action
was not its true reason but a sham or pretext for discrimination.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
We find that the agency articulated legitimate, nondiscriminatory reasons
for its selection decisions. As explained by the SO, the changing needs
of the plant required modification of certain engineering positions and
creation of SE positions for which he sought engineers with mechanical and
electrical backgrounds. While complainant met the minimum qualifications
for the position and was interviewed, the SO explained that he was not
selected because he lacked specialization in mechanical or electrical
engineering. Further, we note that the three selectees, in fact, were
either mechanical or electrical engineers. With regard to the SC-4
positions, we note that the SO explained that the agency elected not to
fill these slots.
The burden now returns to complainant to demonstrate that the agency's
articulated reasons for its selection decisions were not accurate
or based on discriminatory factors. Complainant asserts that he met
minimum qualifications but cannot show that he met the further criteria
of a mechanical and/or electrical engineering background. Further,
he has not shown that the agency's explanation was untrue, nor has he
demonstrated that the agency's reasons were based on prohibited factors.
Likewise, we note that a black applicant was initially selected and
that a black candidate was chosen for the position in a second round.
With regard to the SC-4 positions, complainant has not contended or
shown that cancellation of those slots was pretextual. Based on our
review of the record, we find therefore that complainant has not shown
that the agency's reasons for its actions were pretextual.
To establish a prima facie case of reprisal discrimination, complainant
must show that (1) he engaged in prior protected activity; (2) the
acting agency official was aware of the protected activity; (3) he
was subsequently disadvantaged by an adverse action; and, (4) there
is a causal link between the protected activity and adverse action.
Hochstadt v. Worcester Foundation for Experimental Biology, Inc., supra;
Manoharan v. Columbia University College of Physicians and Surgeons,
842 F.2d 590, 593 (2d Cir. 1988). The causal connection may be shown by
evidence that the adverse action followed the protected activity within
such a period of time and in such a manner that a reprisal motive is
inferred. Grant v. Bethlehem Steel Corp., 622 F.2d 43 (2nd Cir. 1980).
Even if complainant established a prima facie case, as stated, above, the
agency articulated legitimate, nondiscriminatory reasons for its actions
that complainant did not demonstrate were pretextual. Therefore, we
find that the agency did not discriminate against complainant in reprisal.
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
05-18-00
Date Carlton Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
______________ _________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2Complainant stated that he received this appointment in December 1995
pursuant to settlement of previous EEO activity.
3The SO explained that two SEs at the SC-4 were already extant at the
facility, having been grandfathered into the positions.
4Both the SO and personnel assistant referred to ratings given all
candidates interviewed based on identical questions asked of each
applicant. According to the SO, E1 received a score of 57, E2 received
42, and complainant received 29.