Shad R.,1 Complainant,v.Bill Johnson, President and Chief Executive Officer, Tennessee Valley Authority, Agency.

Equal Employment Opportunity Commission

Sep 28, 2018

0120180312 (E.E.O.C. Sep. 28, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Shad R.,1
Complainant,

v.

Bill Johnson,
President and Chief Executive Officer,
Tennessee Valley Authority,
Agency.

Appeal No. 0120180312

Agency No. TVA-2012-0006

DECISION

On October 28, 2017, 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 30, 2017, final decision 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. For the following reasons,
the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

On May 29, 1999, the Agency hired Complainant as a Program Administrator within its River
Systems Operations and Engineering group. His duty station was located in Chattanooga,
Tennessee. He remained in that position until he was promoted to Program Manager, River
Operations, Corrective Action Program Process Improvement (hereinafter “CAP Manager”),
effective June 9, 2008.

On October 12, 2011, Complainant filed an EEO complaint in which he alleged that his manager,
the General Manager for Dam Safety (Dam Safety Manager – DSM) discriminated against him on

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.
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the bases of race (African-American), national origin (Hispanic)2, and age (55) when, since his
hiring into the Program Manager position in 2008, he has received unequal and unfair pay. He
also alleged that the Selecting official and the members of the interview panel for the position of
Manager of Processes and Improvement did not select him for that position on June 6, 2011. The
Agency issued a decision finding no discrimination in connection with the claim pertaining to
compensation and dismissing the claim pertaining to the nonpromotion for failure to timely contact
an EEO counselor.

In * * * v. Tennessee Valley Authority, EEOC Appeal No. 0120122983 (June 17, 2015), the
Commission found that the evidentiary record was inadequate to support a determination with
respect to the compensation claim. We also found that the Agency improperly dismissed the
nonselection claim. In our order, we directed the Agency to investigate the nonselection claim and
to conduct a supplemental investigation on the compensation claim.

In accordance with our order, the Agency processed the remanded allegations and presented
Complainant with a copy of the investigative report and notice of his right to request a hearing
before an EEOC Administrative Judge (AJ). On August 7, 2017, Complainant requested a final
agency decision on the record. In accordance with Complainant’s request, the Agency issued a
final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant
failed to prove that the Agency subjected him to discrimination as alleged.

When Complainant was hired, his annual salary increased from $76,314.91 to $83,319.00, a
difference of nine percent. By 2010, his salary had increased to $85,985, and in 2011, it had
increased to $87,705. Complainant averred that when he was hired into the CAP Manager position
in June 2008, he replaced two Program Managers in River Operations, C1 and C2. C2’s job title
was Project Manager for River Systems Operations and Engineering. As such, she had different
job duties and reported to different managers than Complainant. Her salary at the time of her
termination in 2007 was $97,273. C1 had held the CAP Manager position prior to Complainant’s
selection for that job. His salary before leaving that position was $88,358. Complainant also
averred that he had performed the job duties that once belonged to C3, C4, and C5. However, C3
and C5 only worked part time and C5 was employed as a Business Support Representative rather
than a Program Manager. Also, C4 was a senior manager who had many more responsibilities
than Complainant, including supervisory responsibilities. By contrast, Complainant had not
supervised any employees while serving as the CAP Manager. In addition, the DSM averred that
the only employee Complainant replaced was C1.

Complainant applied for the position of Manager of Processes and Improvements and was
interviewed by the Selecting Official (SO) and two panel members (P1 and P2).

2 We note that in his complaint and subsequent documentation, Complainant identified Hispanic
as a race category. The Commission views “Hispanic” as a national origin designation and not as
a racial designation. Morales v. Dept. of the Navy, EEOC Petition No. 03930096 (Dec. 10, 1993);
Banco v. Dept. of Justice, EEOC Appeal No. 01A03601 (Dec. 12, 2002).

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The position was offered to a sixty-year-old white female, but after she rejected the offer, the
position was offered to the Selectee, a thirty-seven-year-old white male. According to the Human
Resources Manager who worked with the SO, the hiring process consisted of a two-stage records
review followed by an interview and an assessment of supervisory capabilities. During the first
phase records review, the application packages of the candidates were evaluated on seven criteria.
Those who met these criteria were then evaluated on two additional criteria. The Selectee received
a records review score of 3560 while Complainant received a score of 2800. During the interview
phase, five candidates, including Complainant and the selectee, were asked ten standard interview
questions. Supervisory assessments were derived from an analysis of the candidates’ job activities.
The SO, P1, and P2 had determined that the Selectee was better qualified for the position because
of his experience working in operations since 1999 and his master’s degree in engineering
management. The SO stated that the Selectee had scored slightly higher than Complainant during
the interview.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the
previous decision maker,” and that EEOC “review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).

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, 802 (1973). As a first step, he would normally 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 Construction Co. v. Waters, 438 U.S. 567,
576 (1978).

The prima facie inquiry may be dispensed in this case, however, since the Agency articulated
legitimate and nondiscriminatory reasons for its actions. See U.S. Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC
Request No. 05950842 (Nov. 13, 1997). With respect to the compensation issue, management
stated that C1, Complainant’s predecessor, had received higher pay because he had thirty years of
service and sixteen years as an engineer, while Complainant had only 20 years of service and nine
months as an engineer. The Agency also stated that none of the other employees that Complainant
had cited as comparatives were in comparable positions. As to the nonselection issue, the SO and
the panelists maintained that the original and ultimate selectees presented better applications than
Complainant, as evidenced by their scores in the various phases of the application process.

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To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the
Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Department of Community. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka
v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Pretext can be demonstrated
by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in
the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could
rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Service, EEOC Appeal No.
0120060802 (Nov. 20, 2007), request for reconsideration denied, EEOC Request No. 0520080211
(May 30, 2008).

Indicators of pretext include discriminatory statements or past personal treatment attributable to
those responsible for the personnel action that led to the filing of the complaint, comparative or
statistical data revealing differences in treatment across various protected-group lines, unequal
application of Agency policy, deviations from standard procedures without explanation or
justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v.
U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). With regard to his claim of
inadequate compensation, Complainant has presented neither affidavits, declarations, or unsworn
statements from witnesses other than himself nor documents that undermine the explanation for
Complainant’s pay provided by the DSM and other management officials or which cast doubt upon
the veracity of these individuals. We therefore find, as did the Agency, that Complainant has not
met his burden to prove the existence of an unlawful motivation on the part of any management
official responsible for or involved in setting Complainant’s pay.

Where a nonselection is at issue, Complainant could demonstrate pretext by showing that his
qualifications for the position were plainly superior to those of the Selectee. Hung P. v. Dep't of
Veterans Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015). Complainant should bear in
mind, however, that agencies have broad discretion to choose among equally qualified candidates
as long as the selection is not based on unlawful considerations. Complainant v. Dept. of Homeland
Security, EEOC Appeal No. 0120141478 (Jul. 31, 2015). They may select candidates with fewer
years of experience if they believe that such candidates are best qualified to meet the needs of the
organization. See Complainant v. Dept. of Justice, EEOC Appeal No. 0120131151 (Feb. 25, 2015).
They may even preselect a candidate as long as the preselection is not premised upon a prohibited
basis. See Complainant v. Dept. of Homeland Security, EEOC Appeal No. 0120132858 (Mar. 9,
2015). The evidentiary record in this case clearly establishes that although Complainant and the
Selectee were well-qualified for the position in question, the Selectee had the edge, particularly
with regard to the records review and the interview phases of the process. Again, apart from his
own assertions, Complainant has not provided any documentary or testimonial evidence that tends
to demonstrate the existence of a discriminatory motivation on the part of the SO, P1, or P2.

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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s
final decision finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R.
§ 1614.403(g). 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.

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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

September 28, 2018
Date