[Redacted], Erick N., 1 Complainant,v.John Ryder, Chair, Tennessee Valley Authority, Agency.

Equal Employment Opportunity Commission

Jul 13, 2021

Appeal No. 2021003180 (E.E.O.C. Jul. 13, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Erick N.,1 Complainant, v. John Ryder, Chair, Tennessee Valley Authority, Agency. Appeal No. 2021003180 Agency No. TVA-2020-0067 DECISION On May 9, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 16, 2021 final decision concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant was a former employee of the Agency’s Browns Ferry Nuclear Plant in Decatur, Alabama. On September 17, 2020, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him based on age (51) when, on June 26, 2020, he learned he was not selected for the position of Instrument Mechanic, under Job Number 510022. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. 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. 2021003180 2 The instant appeal followed. On appeal, Complainant states that the Agency attempted for two years to fill the eight instrument mechanic positions internally. Complainant argues that a deeper analysis of the hiring matrix demonstrates that the Agency was required to make two of the three offers based on Veteran status. Complainant states that the final offer was made to a selectee who was 60 years of age. He also questions why another candidate, age 24, was not selected, even though he was qualified. Complainant argues that the Agency did not select the 24-year-old candidate because it would “complicate any justification for not interviewing” Complainant. Complainant attempts to refute the Agency assessment of negative interactions with co-workers in Complainant’s prior Agency employment. Complainant states that those assertions are generalizations and lack documentation. Complainant states that the “push back” which the Agency assessed when Complainant was employed, in relation to personnel safety. Complainant asserts that his experience with the Occupational Safety and Health Administration (OSHA) Voluntary Protection Program (VPP) informed his perspective. Complainant recounts multiple instances where he pointed out safety issues, and states that those were the actual source of conflict. He also argues that the Agency’s management officials failed to provide documentation to support their explanations. Complainant questions the legitimacy of using comments from unnamed Agency employees to support not selecting him for an interview. ANALYSIS AND FINDINGS Retaliation Claim As a threshold matter, Complainant alleged reprisal as a basis in his formal EEO complaint. The EEO Counselor’s report stated that Complainant only raised the issue of age. The Agency did not include reprisal as an accepted basis. The record does not provide any evidence of Complainant having engaged in prior protected EEO activity. The Agency and Complainant confirmed that Complainant engaged in disagreements with management officials in the past. On appeal, Complainant assert the same and explains that the disagreements were often about safety issues, from his viewpoint as a prior OSHA official. To be under the Commission’s jurisdiction, reprisal must be for EEO protected activities. Complainant’s prior complaints or issues raised with management at personnel safety may be construed as whistleblower activity. The Commission has previously held that whistleblower activities are generally outside the purview of the EEO process. See Giannu v. Department of Housing and Urban Development, EEOC Request No. 05880911 (February 13, 1989). Here, there is no indication at all that Complainant's whistleblower activity involved allegations of employment discrimination. Additionally, while Complainant discusses his prior disagreements with management, he does not raise the claim of reprisal on appeal. Therefore, we find that the basis of reprisal was abandoned. Moreover, for the reasons discussed below, to the extent that the basis of reprisal can be construed as raised and not abandoned, Complainant would not prevail in a discrimination finding on that basis. 2021003180 3 Disparate Treatment 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 a complainant to prevail, he 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, non-discriminatory 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). Here, the Agency’s articulated legitimate, nondiscriminatory rationale for not interviewing, and subsequently not selecting Complainant for the vacancy was Complainant’s conflicts with management and employees. There was also testimony that Complainant was highly qualified, intelligent, and the record shows that he had the highest record review score of the candidates, Despite these qualifications, Complainant’s history at the Agency’s Browns Ferry Nuclear Plant was one where numerous employees requested that he not be brought back to the facility. The Agency provided testimony from Agency employees attesting to either having first-hand experience or being approached by other Agency employees with their accounts of Complainant’s behavior. Each of these witnesses were expressly named in the FAD. One of the management official on the interview panel (OIP) (over 40 years old), who was in charge of determining the records review criteria and advancing candidates for interview, recalled that Complainant was often involved in conflict during his prior employment. The hiring manager (HM) (over 40 years old) testified that two senior instrument mechanics approached him and expressed concerns about Complainant being a “cancer” and causing problems in the work group. The Union steward (US) (under 40 years old) was approached by eight employees who expressed concerns about Complainant returning to the facility. 2021003180 4 A senior instrument mechanic foreman (under 40 years old), who was on the interview panel, testified that he worked directly with Complainant from 2007 through 2011, while they were trainees, and also stated that Complainant challenged some instructors on material and was disruptive in class. The record contains testimony from numerous Agency officials regarding Complainant’s disruptiveness during his prior Agency employment. The record may indeed reflect that Complainant was highly qualified and scored the highest in the records review. However, under the circumstances, the Agency was not obligated to grant him an interview or an offer of employment. There is simply no evidence that the Agency denied him an interview and did not hire him because of his age. In fact, one of the two selectees who accepted the position was 60 years old. The evidence of record substantiates the Agency’s proffered reason for not selecting Complainant for the vacancy - Complainant’s history at the facility made him someone who the Agency determined was not a “good fit” for the position. Complainant bears the burden of demonstrating that the Agency’s articulated rationale is pretext for discrimination. Complainant fails to do so here. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final finding of no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). 2021003180 5 Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2021003180 6 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 July 13, 2021 Date