[Redacted], Milton D., 1 Complainant,v.John Ryder, Chair, Tennessee Valley Authority, Agency.

Equal Employment Opportunity Commission

Jul 28, 2021

Appeal No. 2020000825 (E.E.O.C. Jul. 28, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Milton D.,1 Complainant, v. John Ryder, Chair, Tennessee Valley Authority, Agency. Appeal No. 2020000825 Hearing No. 420-2017-00070X Agency No. TVA-2015-0070 DECISION On October 16, 2019, via his attorney 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 September 16, 2019 final order concerning his equal employment opportunity (EEO) complaint alleging 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed as a Tech, Chemical and Radiological (Radiochemical Laboratory) Analyst, B/CNV-B59, at the Browns Ferry Nuclear Plant in Alabama. 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. 2020000825 2 On February 5, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on his race (Black) and age (52) when on or about September14, 2015, he was not competitively selected for the position of Supervisor, Nuclear Chemistry, at the Browns Ferry Nuclear Plant.2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. Over his objection, the AJ granted the Agency’s motion for summary judgment for the reasons advanced by the Agency. The final Agency order adopted the AJ’s finding of no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Here, Complainant has failed to point with adequate specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute that requires resolution through a hearing. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. In its motion for summary judgment, the Agency argued Complainant failed to make out a prima facie of age or race discrimination because he did not show other similarly situated applicants outside his protected groups who like him were referred to the selecting official because they met the minimum qualifications for the job were treated differently. 2 Complainant also alleged discrimination about not being selected for another position. On appeal, he does not contest the finding of no discrimination on that matter. 2020000825 3 To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). In its motion for summary judgment, the Agency argued that even if Complainant established a prima facie case of discrimination, those with input into choosing the selectee (white, age 49) articulated legitimate, non-discriminatory reasons for their decisions. In sum, Interview Panel Members 1 (white, age 41) and 2 (white, age 39), and the Selecting Official who made the selection - also a member of the interview panel (Senior Manager of Chemistry and Environmental of the Browns Ferry Nuclear Plant - white, age 45) stated they based their input and selection on qualifications, not discrimination. On appeal Complainant argues, as he has done from the start of his case, that the selectee should not have been referred to the Selecting Official because he did not meet the minimum qualifications of the position. The vacancy announcement required a minimum of four years of applied chemistry experience. The selectee started working at the Browns Ferry Nuclear Plant as a Tech (Chemistry and Radiology), A/CNV-B51 in the Nuclear Chemistry organization on or about May 5, 2014, so he had about 1⅓ years of applied chemistry experience in the nuclear industry. He had, however, years of prior experience as a chemist. Panel Member 1, a Senior Human Resources Generalist, stated that the selectee had a least four years of applied chemistry experience, and there was no requirement it be in nuclear applied chemistry. On appeal, Complainant argues that American National Standards Institute (ANSI) standards set forth the minimum requirements to supervise an area like Nuclear Chemistry. In his transcribed affidavit, the Selecting Official agreed, and stated the Agency was committed to these ANSI standards through the Nuclear Regulatory Commission. He stated the selectee met the standard. Complainant argues on appeal that one way to qualify under the ANSI standards is to have a minimum of four years of experience in the craft or discipline they supervise. He contends that the discipline is radiochemistry. When asked about this by the EEO investigator, the selecting official read and interpreted an alternative way in the ANSI standards to qualify - five years of experience in chemistry, of which at least one must be radiochemistry, a minimum of two years must be related technical training, and a maximum of four of the five years of experience can be fulfilled by related technical academic training. On appeal, Complainant argues the selectee did not meet this alternative way to qualify. 2020000825 4 The selectee graduated from college in 1990 with a B.S. in General Chemistry. His resume reflects he worked in the paper industry from 1991 - 2014, starting as a chemist for six years. In his affidavit, the Selecting Official noted this chemist experience. Agency records show that from when he started with the Agency in May 2014 to being selected in September 2015, the selectee took numerous Agency technical chemistry courses. Based on the above, we find that Complainant has not shown that the responsible Agency officials more likely than not did not believe the selectee met the minimum requirements for the Supervisory Nuclear Chemistry job. Citing his 31 years of Agency experience in chemistry, including doing laboratory sampling and analysis, a temporary promotion to supervisor, subsequently assisting coordinating shifts of people who worked in the lab, being a Performance Improvement Coordinator and a Corrective Action Program Coordinator, and serving on the chemistry curriculum review committee and as an on-the-job trainer for over 20 years, Complainant argues that his qualifications were plainly superior to the selectee’s. An employer has discretion to choose among equally qualified candidates, so long as the selection is not based on unlawful criteria. In the absence of such evidence, the Commission will not second guess an agency's assessment of the candidates' qualifications. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, at 259 (1981). Further, deference to an employer's use of subjective criteria increases when upper level, supervisory or professional promotions are involved. Davis v. Board of School Comm'rs. of Mobil County, 600 F.2d 470 (5th Cir. 1979), aff'd on this point, 616 F.2d 893 (5th Cir. 1980). If a Complainant’s qualifications are plainly superior to the selectee’s, this is evidence of pretext. Here, Complainant has not established his qualifications were plainly superior to those of the selectee, for the reasons given by Interview Panel Members 1 and 2, and the Selecting Official. According to these witnesses, the selectee, who had over 11 years of experience as a supervisor and manager in the private sector prior to arriving at the Agency, gave far more cogent responses in his interview indicating better leadership skills than Complainant. They backed up their reasons with specific examples. In sum, while Complainant and the selectee brought different qualifications for the position, Complainant has not shown that the alleged disparities in qualifications between he and the selectee were “of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the [selectee] over [him] for the job in question.” Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004); see also, Ash v, Tyson Foods, Inc., 126 S. Ct. 1195, 1197-1198 (2006). As such, we find that Complainant failed to establish, by a preponderance of the evidence, that he was discriminated against as he alleged. The FAD is AFFIRMED. 2020000825 5 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). 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). 2020000825 6 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 July 28, 2021 Date