Eugene D. Buggs, Complainant,v.Craven H. Crowell, Jr., Chairman, Tennessee Valley Authority, Agency.

Equal Employment Opportunity CommissionMay 18, 2000
01985771 (E.E.O.C. May. 18, 2000)

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.