01996986
10-10-2001
R. David Graham Complainant, v. Craven H. Crowell, Jr., Chairman, Tennessee Valley Authority, Agency.
R. David Graham v. Tennessee Valley Authority
01996986
10/10/01
.
R. David Graham
Complainant,
v.
Craven H. Crowell, Jr.,
Chairman,
Tennessee Valley Authority,
Agency.
Appeal No. 01996986
Agency No. 1031-98016
DECISION
R. David Graham (complainant) timely initiated an appeal of a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination on the basis of sex (male) in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
The appeal is accepted pursuant to 29 C.F.R. �1614.405. For the following
reasons, the agency's decision is AFFIRMED.
ISSUES PRESENTED
The issue on appeal is whether complainant has proven by a preponderance
of the evidence that he was subjected to unlawful employment
discrimination on the above-cited basis when he was not selected for
an Economic Development Specialist PG-7 position which was announced in
Vacant Position Announcement No. 12197 on or around July 25, 1997.
BACKGROUND
The record reveals that complainant was employed as an Economic
Development Specialist, PG-7, (EDS), in Tupelo, Mississippi, at the
time he filed the instant complaint. On or around July 7, 1997,
complainant applied for an EDS position in the Economic Development
operation of the agency. According to the Position Description for the
EDS position, the purpose of the position was to �market and manage
industrial loan projects. Work with TVA distributors and regional
industrial development associations (RIDA's) to provide assistance on
industrial development and power supply matters for prospective new or
expanding industrial plants in the regional office's service area to
encourage industries to locate/expand in the Tennessee Valley region.�
The incumbent's responsibilities included �developing prospective loan
candidates, performing loan screening, assisting in the development
of loan applications, obtaining or facilitating the gathering of loan
support documentation necessary for loan award, managing the loan payoff
and collection efforts needed to repay the loan.� Complainant argued
in his formal complaint and in his affidavit that the agency engaged
in discriminatory practices when it filled two of the EDS positions in
Tupelo, Mississippi.<1> Specifically, complainant stated that the two
female Selectees for the EDS positions in that region had less experience
and less education than he did.
At the conclusion of the investigation, the agency informed complainant of
his right to request a hearing or a FAD. In a telephonic conference on
April 7, 1998, complainant requested a hearing with an Administrative
Judge of the EEOC, but by letter dated May 20, 1999, complainant
withdrew his hearing request and requested that the designated agency
official issue a decision without a hearing. In a FAD dated August 3,
1999, the agency found that complainant established a prima facie case
of sex discrimination. However, the agency found that it articulated
legitimate non-discriminatory reasons for its action which complainant
failed to show were pretext for discrimination.
CONTENTIONS ON APPEAL
Complainant did not raise any new arguments or make any new contentions
on appeal. In responding to complainant's appeal, the agency basically
reiterates the arguments it made in its FAD. In effect, the agency
argues that its FAD is proper and requests that the Commission deny
complainant's appeal.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation
of burdens and order of presentation of proof in Title VII cases is a
three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Complainant has the initial burden of establishing a prima
facie case of discrimination. A prima facie case of discrimination
based on sex is established where complainant has produced sufficient
evidence to show that he is a member of a protected class and he was
accorded treatment less favorable than that given to persons otherwise
similarly situated who are not members of his protected class. Potter
v. Goodwill Industries of Cleveland, 518 F. 2d 864 (6th Cir. 1975);
Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).
If complainant has established a prima facie case, the burden
of production shifts to the agency to articulate a legitimate
non-discriminatory reason for the adverse employment action.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252
(1981). If the agency articulates a reason for its action, the burden
of production then shifts back to complainant to establish that the
agency's proffered explanation is pretextual, and that the real reason
is discrimination. Throughout the complaint process, complainant retains
the burden of proof to establish discrimination by a preponderance of
the evidence. Although the initial inquiry in a discrimination case
usually focuses on whether the complainant has established a prima facie
case, following this order of analysis is unnecessary when the agency
has articulated a legitimate, nondiscriminatory reason for its actions.
See Washington v. Department of the Navy, EEOC Petition No. 03900056
(May 31, 1990). In such cases, the inquiry shifts from whether the
complainant has established a prima facie case to whether he has
demonstrated by a preponderance of the evidence that the agency's reasons
for its actions merely were a pretext for discrimination. Id.; see also
United States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
714-717 (1983). In this case, the Commission finds that the agency
has articulated legitimate, nondiscriminatory reasons for its action.
Specifically, the agency's Economic Development Regional Manager, PG-10
(male) who was the Selecting Official (SO) for the selections, stated that
he selected two female applicants (hereafter Selectee #1 and Selectee #2)
for the open EDS positions in the Mississippi region.
In comparing complainant to Selectee #2, the SO stated that Selectee
#1 had worked for a longer period of time in the Resource Development
and the Economic Development arena than did the complainant. The SO
also stated that Selectee #2 simply appeared to have a better working
knowledge of the project than complainant. With respect to Selectee #1,
the SO averred that she interviewed better than did the complainant and
she was ranked higher by the interview panel than did complainant.
Members of the interview panel also gave statements to the EEO
Investigator. Among the interview team, was a Human Resource Consultant,
PG-7, (HRC) (female). She averred that during the interviews there were
a number of candidates who presented themselves and had better external
records than complainant. The HRC stated that each of the selecting
officials was required to take into consideration in making their
decisions, the data provided to them by the interview panel, as well
as their overall knowledge of how the candidates performed the EDS job
in the past. The HRC added that experience was not the only qualifying
factor. The interview team also looked at other external factors such
as how the candidates interacted with their team members as well as with
customers both inside and outside of TVA. With respect to complainant,
the HRC stated that the team members had concerns with respect to his
interpersonal relationships and his ability to be a team player.
The agency's Senior Manager for Field Operations, PG-7 (Senior Manager)
(male), who was also on the interview team averred that he considered
Selectee #2 to be better qualified than complainant in that she had a
proven track record in working with the agency's new customer base. The
Senior Manager also averred that Selectee #2 also had a strong background
and experience in Industrial Development. Further, the Senior Manager
testified that Selectee #2's responses to the interview questions,
especially her knowledge of Industrial Development, led him to the
conclusion that she was the better candidate for the EDS position.<2>
A third member of the interview team, Regional Manager, PG-10 (male),
also gave a statement to the EEO Investigator. Except for the fact
that he recalled relying more on the candidate's interview than on their
resumes or qualifications, he referred the Investigator to the summary
notes of the interview team to determine how complainant compared to
Selectee #1 and Selectee #2 in the interview process.
A review of the interview summary for complainant and the Selectees
reveals that of a possible maximum rating of 40 points which measured the
candidates Knowledge, Skills and Abilities (KSA), complainant received a
total of 21.5 points, while Selectee #1 received a total of 24.5 points
and Selectee #2 received a total of 25 points. <3> The comments of
the interview team with respect to complainant's overall performance
during the interview process show that they were impressed with his
�excellent track record implementing and completing loan projects.� The
notes also reveal that the interview team felt that complainant had the
skills necessary to make an effective transition into power sales, but
they expressed concern regarding complainant's need to be in the lead
and his �potential problem with lack of teaming.� The interview panel
did not write any negative comments regarding Selectee #1 or Selectee
#2 with respect to their overall performance.
Based on the above discussion, we find that the agency has articulated
legitimate non-discriminatory reasons for not selecting complainant for
one of the EDS positions. Because the agency articulated a legitimate
non-discriminatory reasons for the challenged personnel action,
complainant must demonstrate that the reasons are pretextual and/or that
the agency was motivated by discriminatory animus in not selecting him
for an EDS position.
Upon reviewing the record as a whole, the Commission finds that
complainant failed to show by a preponderance of the evidence that the
reasons articulated by the agency for his non-selection were pretexts
for discrimination. In his complaint, as well as in his affidavit,
complainant argues that the agency changed its selection process in this
recruitment action to give more weight to the interview process than to
the candidates experience and overall qualification, thus, benefitting
female candidates. However, complainant presented no concrete evidence
of discriminatory animus toward him or members of his protected class.
In fact of the 15 candidates selected for the EDS positions, 13 were
male and 2 were female. Moreover, the Commission finds that even if
the agency strayed from its normal selection process in this recruitment
action, unless complainant can establish that such action was prompted by
discriminatory animus, the Commission will not second guess the agency's
business decision in this matter. See Burdine, 450 U.S. at 259, see
also Dorothy Schaeffer v. Department of Transportation, EEOC Appeal
No. 01A10518 (February 14, 2001). As the agency noted in its FAD, the
overall selection of male candidates exceeded the percentage of qualified
male candidates for the EDS position. In prior judicial decisions, courts
have held that in order for there to be a finding of discrimination in a
non-selection case, the qualifications of the complainant must be clearly
superior to that of the Selectee. See Bauer v. Bailar, 647 F.2d 1037,
1048 (4th Cir. 1981). Although it is apparent that complainant was
qualified for the EDS position, the Commission is unable to find that
his qualifications were clearly superior to those of the Selectees.
CONCLUSION
Therefore, the agency's finding of no sex discrimination in relation to
complainant's non-selection for an EDS position 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).
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
10/10/01
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 The agency filled 15 EDS positions in nine geographic areas,
Chattanooga, Hopkinsville, Huntsville, Jackson, Knoxville, Memphis,
Muscle Shoals, Nashville, and Tupelo, from Vacant Position Announcement
No. 12197.
2 The Senior Manager did not recall interviewing Selectee #1.
3 The eight KSA's against which the candidates were measured are:
Geographical Preference, Role of the EDS, Successful Loan Project,
Small Business Development, Technical Services, Managing ED Projects and
Contracts, Network of Contacts, and One Page Loan Justification Memo.
The interview team did not give any of the candidates a rating for their
Geographical Preference or for their One Page Loan Justification Memo.