01a50808
02-09-2005
James M. Godfrey, Complainant, v. Glenn L. McCullough, Jr., Chairman, Tennessee Valley Authority, Agency.
James M. Godfrey v. Tennessee Valley Authority
01A50808
February 9, 2005
.
James M. Godfrey,
Complainant,
v.
Glenn L. McCullough, Jr.,
Chairman,
Tennessee Valley Authority,
Agency.
Appeal No. 01A50808
Agency Nos. 0404-2003029
0923-2003059
DECISION
Complainant filed a timely appeal with this Commission from two final
decisions, dated September 21, 2004 and September 22, 2004, finding no
discrimination in the two captioned complaints that claimed unlawful
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. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. The Commission accepts and consolidates these
appeals. See 29 C.F.R. � 1614.405 and 29 C.F.R. � 1614.606.
Complainant was an applicant for four positions at the agency's River
System Operations and Environment, Resource Stewardship, Hiwassee
Watershed Team, in Murphy, North Carolina. Complainant filed one of
the two instant formal complaints regarding three positions, on April 4,
2003 (Agency No.0404-2003029) and the other formal complaint regarding
a fourth position, on September 23, 2003 (Agency No. 0923-2003059).
In Agency No. 0404-2003029, complainant claimed that he was discriminated
against on the basis of disability (left radial club hand) when:
(1) on February 13, 2002, he was not considered or hired for the position
of Watershed Representative under Vacancy Announcement #018532;
(2) on February 13, 2002, he was not considered or hired for the position
of Watershed Representative under Vacancy Announcement #018968; and
(3) on February 10, 2003, he was not considered or hired for a contract
or hourly position of Watershed Representative.
In Agency No. 0923-2003059, complainant claimed that he was discriminated
against on the bases of disability (left radial club hand) and in reprisal
for prior EEO activity when:
on August 25, 2003, he was not considered or hired for the contract
position of Watershed Representative.<1>
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. Complainant
requested that the agency issue a final decision on both complaints.
Regarding Agency No. 0404-2003029, the agency issued a final decision,
finding no discrimination. The agency concluded that complainant
established a prima facie case of disability discrimination because the
selectees, not in complainant's protected class, were selected for the
positions of Watershed Representative (claims (1) - (3)). The agency
however determined that it had articulated a legitimate, nondiscriminatory
reason for its non-selections of complainant. Specifically, the agency
found that the selectees for the Watershed Representative positions
were internal employees and better qualified than complainant. Further,
the agency found that complainant failed to present any evidence which
demonstrated that management's articulated reason for its actions was
a pretext for discrimination.
Regarding Agency No. 0923-2003059, the agency issued a final decision,
finding no discrimination. The agency concluded that complainant
failed to establish a prima facie case of disability. The agency
further concluded that complainant established a prima facie case of
reprisal discrimination. The agency, however, determined that it had
articulated a legitimate, nondiscriminatory reason for its non-selection
of complainant. Specifically, the agency found that the selectee for the
Watershed Representative position was a contractor employee and better
qualified than complainant. Further, the agency found that complainant
failed to present any evidence which demonstrated that management's
articulated reason for its actions was a pretext for discrimination.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, she 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Agency No. 0404-2003029
The agency articulated a legitimate, non-discriminatory reason for its
employment actions, which was not persuasively rebutted by complainant.
The record in this case contains an affidavit from the Selecting Official
(SO). Therein, the SO stated that there was an internal posting for the
position of Watershed Representative (claim (1)), not open to external
candidates. The SO stated that complainant was not considered for the
subject position because he was an external employee. The SO stated
that he based his determination to select the selectee, a temporary
employee, based on the EA Agreement and Supplementary Agreement VIII.
The SO stated �generally it's the policy to promote or transfer present
salary policy employees rather than appoint candidates outside of TVA.�
The SO stated that while the selectee was a temporary employee, he �had
to reapply through the process in order to have an opportunity to become
full-time annual, which he did.�
Regarding claim (2), the SO stated that initially the subject position
was posted for internal hiring only; and that the criteria of the
subject position required a bachelor's science degree in Resource
Management and Environmental Science. The SO further stated that only
one internal candidate was considered because another internal candidate
did not meet the minimum qualifications. The SO stated that, initially,
complainant was not considered for the subject position because he �was
not a present employee.� However, the SO stated that when the position
could not be filled internally, the agency conducted a college recruit,
and received applications of individuals that might meet the position's
minimum requirements. The SO explained that as result, 43 candidates,
including complainant, were considered for the subject position; and
that a team of four agency officials, including himself, reviewed these
candidates for the subject position. The SO stated that the team was
looking for someone with an advanced degree and work experience; and that
the team took �the top fourteen or so candidates from that, progressing
to a phone interview process.� The SO stated that complainant was not
one of the top 14 candidates based on qualifications. The SO stated that
he made the determination to select the selectee based on his performance
during the interview process; had a Master's degree in Earth Environmental
Science Management; and work experience as an Hydro-geologist. The SO
stated that the selectee turned down the offer, and that the next
qualified selectee was selected for the subject position. The second
selectee also declined the offer for the subject position. Moreover,
the SO stated that complainant's disability was not a factor in his
determination to select the two selectees.
Regarding claim (3), the SO stated that the subject position was not
posted because it was a contractor position. The SO further stated
that he was looking for outside candidates because the subject position
was a specific 6-month assignment (temporary tenure). The SO stated
that he was looking for someone �to do 26-A permitting work with land,
and also work with some of our local water quality projects that we have
within watershed itself.� The SO stated that he received two �potential
candidates,� including complainant; and that he interviewed the selectee
for the subject position because she was �a better candidate.� The SO
stated that the selectee had a bachelor of science degree in natural
resource management; and background experience in biology, chemistry,
environmental policy, environmental management, environmental impact
statements and assessments. The SO stated that the selectee started
working for the agency as a contractor in February 2003. The SO stated
that complainant's disability was not a factor in his determination to
select the selectee for the subject position. Regarding complainant's
claim that the SO selected the selectee because he goes to church with
her family, the SO stated that it was an �inaccurate statement.� The
SO stated that he only knew her as an acquaintance; and that she �was
recommended, and that's how we came to know her and accept her resume.�
Finally, we find that complainant has not demonstrated that the agency's
articulated reasons for the non-selections (claims (1) - (3)) were a
pretext for discrimination.
Accordingly, the agency's decision finding no discrimination is AFFIRMED.
Agency No. 0923-2003059
The agency articulated a legitimate, nondiscriminatory reason for its
employment action, which was not persuasively rebutted by complainant.
The SO stated while there was no posting for the subject position,
the agency decided to use an existing contractor that was already in
place to work in the subject position. The SO stated that complainant
was not considered for the subject position because his �skill sets for
this job did not apply.� The SO stated that the contractor employee
was chosen for the subject position because of his computer background,
and that his work experience and �his background were applicable to a
W.I.T., or Watershed Information Technician contract position.� The
SO stated that complainant's disability and prior protected activity
were not factors in his determination to use the contractor employee to
work in the subject position. Regarding complainant's claims that the
SO does not like him because of his prior protected activity, the SO
stated �there's not dislike or any feeling towards [Complainant], it's
simply down to whether or not he's qualified for a position with N.R.S.,
and that's what the decision was made upon, were people's qualifications.�
Finally, we find that complainant has not demonstrated that the
agency's articulated reasons for the non-selection were a pretext for
discrimination.
Accordingly, the agency's decision finding no discrimination is AFFIRMED.
In summary, the agency's final decisions finding no discrimination in
Agency Nos. 0404-2003029 and 0923-2003059 was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 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 (S0900)
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
February 9, 2005
__________________
Date
1The Commission presumes for the purposes of
analysis only, and without so finding, that complainant is an individual
with a disability.