0120141825
06-08-2016
Malcom N.,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
Malcom N.,1
Complainant,
v.
Bill Johnson,
President and Chief Executive Officer,
Tennessee Valley Authority,
Agency.
Appeal No. 0120141825
Agency No. TVA-2012-043
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's March 27, 2014 final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Nuclear Assistant Unit Operator at the Agency's Sequoyah, Tennessee Nuclear Power Station.
On June 22, 2012, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the basis of age (over 40) when:
on or about May 15, 2012, he was not selected for a position as a Specialist, Nuclear Outage, Nuclear Power Group at Sequoyah Nuclear Plant under VPA number 29106 and later re-posted under VPA number 29627.
After the investigation of the formal complaint, Complainant was provided with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant initially requested a hearing. However, Complainant subsequently withdrew his hearing request. Consequently, the Agency issued the instant final decision on March 27, 2014, pursuant to 29 C.F.R. � 1614.110(b).
The Agency issued the instant final decision, finding no discrimination. The Agency found that Complainant established a prima facie case of age discrimination. The Agency stated, however, Agency management articulated legitimate, nondiscriminatory reasons for the non-selection which Complainant failed to show were a pretext.
The instant appeal followed. Complainant, on appeal, argues that he "diligently followed the complaint process and in a timely manner asked for additional items of discovery evidence" but his motion to compel was denied. Complainant further argues that he responded to the Agency's motion for a summary judgment "with an answer to request for summary judgment, also asking to renew my request for hearing/discovery evidence/and a list of witnesses to be present, 23 FEB [2013]."
Further, Complainant states that following his shoulder surgery, he contacted the AJ regarding the status of his case. Complainant stated that the AJ "informed me, she had decided in favor of summary judgment requested by TVA instead of my request for hearing. [AJ] informed me that I could withdraw my request for hearing and proceed to agency final judgment with rights to appeal if desired. I am emphasizing that not being heard is discarding all of the factual evidence in support of my claim of age discrimination...I am asking for either a reversal of the agency finding or the opportunity to present my side of the argument at a hearing."
In response, the Agency argues that Complainant never responded to its motion for summary decision. The Agency further argues that Complainant chose to voluntarily withdraw his hearing request in January 2014. Moreover, the Agency requests that the Commission affirm its final decision.
ANALYSIS AND FINDINGS
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, he must first establish a prima facie 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 management articulated legitimate, nondiscriminatory reasons for its actions. The Agency advertised for one or more positions in VPA No. 29627, and later re-posted in VPA No. 29627. At that time, the Agency decided to fill three Outage Specialist positions. Agency management used a two-step selection matrix process, consisting of a records review and interview to fill the subject positions. The records review accounting for 30% of the total score and the interview accounted for 70% of the score. Complainant was one of the nineteen applicants that were given to the selecting official for consideration.
The record further reflects that in the records review, the selecting official reviewed the candidates' resumes, measuring resumes against the following five criteria: 1) TVA disciplinary history; 2) their performance reviews; 3) experience, 4) education/training; and 5) project management/coordination experience. Each of the five criteria was graded on a scale of one to five, with zero being the lowest and five being the highest. After the records review, seven of the nineteen applicants made the interview stage. Out of the seven applicants who advanced to the interview stage, five candidates scored higher (490, 485, 415, 415, and 397.5, respectively) than Complainant's score of 360 and another applicant's score of 350.
The interview accounted for 70% of the total score and the interview process was the final piece of the selection necessary to narrow the pool to determine the most qualified candidates. The Manager, Nuclear Unit Outage was the selecting official for the Outage Specialist positions. The selecting official stated that he and the Performance Improvement Coordinator (Coordinator) developed ten questions "based on some of the key criteria for an outage specialist or key attributes. We asked all the applicants the exact same questions. We used a ranking system of 1 through 5 in order to score each question." Specifically, the selecting official stated that the questions were "meant to measure some of key attributes of things that I thought was key. I wanted to make sure I had a conversation about teamwork, honest communication, accountability, mentoring. I wanted to get a feel for how comfortable they were in leading and preparing for site meetings because as an outage specialist, they would be required to do that, you know, to lead meetings on the site as we prepared for an outage."
Following the interviews, he and the Coordinator "went back through each question and we marked our scores on the spreadsheet...so there is a score that exists for each question. They were immediately discussed following each interview." Thereafter, the selecting official stated that he selected three applicants for the subject positions because they were best qualified. The selection official stated that in regard to the first selectee (Selectee 1), he stated that Selectee 1 worked in Maintenance "over the last several years, whereas [Complainant] has primarily been in Operations." The selecting official stated that Selectee 1's background in Maintenance and Navy experience made him better suited for the subject position than Complainant's operations experience. The selecting official stated that Selectee 1 "also attended some portion of the SRO licensing class which is our senior reactor operator class. He completed a pretty good piece of that...[Selectee 1] was more qualified for this position. One of the key attributes for an outage specialist is the ability to coordinate efforts across the site and work with people from different organizations. Both [Selectee 1] and [another selectee (Selectee 2)] had more than proven that capability in the last - - in recent years because of their role as a maintenance shift supervisor and handling emergent issues and forced outages and things of that nature on the back shifts when the primary management team was not on site."
The selecting official stated that the third selectee (Selectee 3) worked as a unit operator "which is a licensed operator, for approximately 10 years on the unit...[Selectee 3's] experience is superior to [Complainant's] based on his licensed operator qualification here. The selecting official stated "looking back, I believe that [three selectees'] proven ability to lead in those emergent conditions as they had proven in their role as maintenance shift supervisor probably did stand out. [Complainant] was not an unacceptable candidate. In the final rankings, [Complainant] was ranked as qualified and he was right up there in the top 20 percent of everybody that applied in this position. It just happens that in the overall rankings based on the process that we went through, his score was just slightly lower and just below the line."
Moreover, the selecting official stated that Complainant's age was not a factor in his decision to select the three selectees for the subject positions.
The Coordinator stated that his only involvement was to assist the selecting official with the interviews. Specifically, the Coordinator stated that he served on the interview board and "helped ask the questions and record the answers and helped [selecting official] grade the candidates."
The Coordinator stated that Selectee 1 had a similar background to Selectee 2's background. Specifically, the Coordinator stated "coordination, interaction with maintenance, which is very valuable to outage planning and that sort of thing because Maintenance is one of the key players in outage preparation." The Coordinator stated that Selectee 2 "had a lot of maintenance coordination experience. I guess he had worked within Maintenance as a maintenance shift supervisor and was familiar with the coordination and that kind of thing probably more than [Complainant] was."
As for Selectee 3, the Coordinator stated that he was more qualified than Complainant because "he has a reactor operator license was one of the key aspects, I would say, probably that set him apart. But the questions that he answered during the interview provided us evidence than he was the better candidate than [Complainant]." For instance, the Coordinator stated that Selectee 3 is a licensed reactor operator, which is a Nuclear Regulatory Commission licensed position. Selectee 3 "actually works in the control room, sees the day-to-day activities of operating a nuclear power plant. [Complainant] is an auxiliary unit operator. His roles are more in the field every day out in the plant doing, I guess, manual operations in the plant. That's the difference, I guess, in those two positions. The AUO is not a licensed position."
With respect to Complainant's assertion that he was better qualified than Selectee 1 and Selectee 2, the Coordinator stated "I believe that [Selectee 1] and [Selectee 2] actually had - - their background outside of TVA gave them some advantage over that. But, they had maintenance and I believe they were both in the Navy or had a military background. [Complainant's] experience - - I think he did have some experience at Turkey Point as a project manager, but we didn't have much to go on from that other than just what he said."
Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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), 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. The requests 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 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
June 8, 2016
__________________
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.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120141825
2
0120141825
7
0120141825