0120170516
09-05-2018
Harley J.,1 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
Harley J.,1
Complainant,
v.
Bill Johnson,
President and Chief Executive Officer,
Tennessee Valley Authority,
Agency.
Appeal No. 0120170516
Agency No. TVA-2015-0023
DECISION
The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant's appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's October 12, 2016, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the reasons stated below, we AFFIRM the Agency's final decision (FAD), which found that Complainant did not demonstrate that he was subjected to discrimination.
ISSUE PRESENTED
Whether Complainant was discriminated against based on his age (46) when he was not selected for the Lineman Maintenance position, advertised as Vacant Position Announcement (VPA) Number 501803, on or about January 7, 2015.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Lineman at the Agency's Construction Organization facility in Cleveland, Tennessee. Complainant applied for the positon of Lineman Maintenance. He made the best qualified list and he and nine other applicants were interviewed for the position. Complainant was not selected for the position. He believed that he was not selected for the position because of his age. The applicant selected for the position, was 39 years old. On March 25, 2015, Complainant filed a formal complaint alleging that the Agency discriminated against him on the basis of age (46) when he was not selected for the Lineman Maintenance position on or about January 7, 2015.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that the Agency applied the wrong standard when considering this case. Specifically, the Agency indicated that Complainant had to show that his qualifications were plainly superior to those of the selectee; and as such, the Agency failed to consider other probative evidence of discrimination. Complainant contends that the Agency disregarded its established written procedures which considered the seniority of the applicant. Complainant maintains that prior selections had been made based on seniority and he had more seniority than the selectee. Complainant argues that the Agency's departure from its established practice is evidence of pretext. Further, Complainant maintains that the Agency failed to sufficiently explain the reasons for its hiring decision. He contends that the Agency did not provide support for the selectee's ratings because he answered questions as effectively as the selectee.
In response, the Agency contends, among other things, that Complainant was not selected because he was not ranked as high as the employee selected for the position. The Agency requests that the FAD be affirmed as Complainant did not meet his burden of proof. The Agency asserts that Complainant's age was not a factor in his nonselection.
ANALYSIS AND FINDINGS
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the Agency's FAD. We find that even if we assume arguendo that Complainant established a prima facie case of age discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was not selected because he was not the best qualified. Management explained that, based on its matrix comprised of the highest scoring applicants, the Selecting Official made an offer to C1, the highest ranked applicant who was 39. C1, however, declined. C2, the second highest ranked applicant, who was age 35, was offered the job and he also declined the position. C3, the third highest scoring applicant, who was age 39, was then offered the position and he accepted.
The Agency explained that one section of the matrix considered the applicants' education and apprenticeship training, journeyman lineman experience, service reviews for the past five years, and any disciplinary actions. The remaining section of the matrix scored the interviews. The Agency weighted the applicant's record at 50% and the interview was weighted at 50%. The selectee received a total of 31 points, while Complainant received 29 points. On journeyman lineman experience, Complainant received a 3 and the selectee received a 1; on service reviews, Complainant got a 2 and the selectee scored a 5; on disciplinary actions, Complainant received 1, and selectee received 0. Regarding the interview portion of the matrix, the selectee received 62, whereas Complainant received 53.5. The Agency indicated that the selectee gave more complete answers during the interview. Moreover, the Agency indicated that it did consider Complainant's seniority as is evidenced by the fact that he received a rating of 3 regarding journeyman lineman experience and the selectee received only a 1. We find that Complainant did not show that the Agency's reasons were pretext for discrimination. He did not show that discriminatory animus was involved in the selection process.
With regard to Complainant's contentions on appeal, we find that other than his conclusory statements, he has not provided evidence which shows that the Agency's selection was discriminatory. The Commission has long held that an employer has the discretion to choose among equally qualified candidates. See Canham v. Oberlin College, 666 F.2d 1057, 1061 (6th Cir. 1981). Absent proof of a demonstrably discriminatory motive, the EEOC will not second-guess an Agency's personnel decision. See Burdine, 450 U.S. at 259. EEOC simply has neither the authority nor the capacity to stand as the super-personnel department for the Agency. Only personnel decisions that are idiosyncratic or suspect are subject to heightened scrutiny because deviations from standard procedures without explanation or justification are sufficient to support an inference of pretext. See Andre v. Dep't of Defense, EEOC Appeal No. 01994562 (Feb. 22, 2002); Hovey v. Dep't of Housing & Urban Dev., EEOC Appeal No. 01973965 (Aug. 31, 2000). We see no such suspect action here. Therefore, we find that the preponderance of the evidence of record does not establish that discrimination occurred.
CONCLUSION
Accordingly, we AFFIRM the Agency's FAD which found that Complainant did not demonstrate that he was subjected to discrimination.
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. 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. 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
__9/5/18________________
Date
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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