01983147
09-05-2000
Glenn D. Henry, Complainant, v. Craven H. Crowell, Jr., Chairman, Tennessee Valley Authority, Agency.
Glenn D. Henry v. Tennessee Valley Authority
01983147
September 5, 2000
.
Glenn D. Henry,
Complainant,
v.
Craven H. Crowell, Jr.,
Chairman,
Tennessee Valley Authority,
Agency.
Appeal No. 01983147
Agency No. EO 0109-97084
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination in
violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.<1> Complainant alleged that he
was discriminated against on the basis of age (41) when: (1) he was not
selected for one of five Operations Specialist, PG-6 positions; and (2)
the positions were classified at the management level to circumvent his
seniority rights under the collective bargaining agreement. The appeal
is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified
at 29 C.F.R. � 1614.405).
The record reveals that during the relevant time, complainant was
employed as a Reactor Engineer at the agency's Browns Ferry Nuclear
facility. Believing that the agency had committed unlawful employment
discrimination, complainant sought EEO counseling and subsequently
filed a formal complaint on January 9, 1997. At the conclusion of the
investigation, complainant was informed of his right to request a hearing
before an EEOC Administrative Judge or alternatively, to receive a final
decision by the agency. After complainant requested a final decision,
the agency issued its decision finding no discrimination in the matter.
In its FAD, the agency concluded that complainant established a
prima facie case of age discrimination regarding his non-selections
because he was qualified for the positions but was not selected in
favor of the selectees, individuals outside his protected age group.
The agency then concluded that the selecting official articulated
legitimate, nondiscriminatory reasons for the actions, namely, that:
(1) he utilized a selection matrix which measured the applicants'
prior job performance, work experience, and education; (2) the five
individuals scoring highest on the matrix received the positions; and (3)
the positions were classified at management level because the eventual
selectees would go into training to receive a Senior Reactor Operator's
license and become supervisors. Finally, the agency concluded that
complainant failed to demonstrate that the selecting official's reasons
were pretext for age discrimination.
On appeal, complainant contends that the record discloses that the agency
classified the positions in question as management positions so as to
circumvent his seniority rights under the collective bargaining agreement.
Complainant also contends that the selecting official failed to credit
him the appropriate points on the selection matrix for his education.
In response, the agency reiterates the findings in its decision and
requests that we affirm its FAD.
Applying the standards set forth in Loeb v. Textron, 600 F.2d 1003 (1st
Cir. 1979) (requiring a showing that age was a determinative factor, in
the sense that "but for" age, complainant would not have been subject to
the adverse action at issue), the Commission agrees with the agency that
complainant failed to present sufficient credible evidence that more
likely than not, the selecting official's articulated reasons for his
actions were pretext for age discrimination. While complainant contends
that the selecting official did not properly credit his education,
the selecting official stated that he only credited points when the
applicant had a Bachelor's or Master's degree in nuclear engineering.
Since complainant has a Bachelor's degree in electrical engineering and
only a minor in nuclear engineering, he was not credited any points for
education. Further, the selecting official gave credible explanations for
classifying the positions in question at the management level. Nothing in
the record reveals that age played any factor in the selecting official's
decisions. It is not the Commission's function to substitute its business
judgment for that of the agency. An agency has discretion to choose from
among equally-qualified candidates so long as the decision is not based
on unlawful factors. Shapiro v. Social Security Admin., EEOC Request
No. 05960403 (Dec. 6, 1996) (citing Bauer v. Bailar, 647 F.2d 1037, 1048
(10th Cir. 1981)). Therefore, after a careful review of the record,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 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
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 5, 2000
1 On 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.