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

Equal Employment Opportunity Commission

Sep 19, 2018

0120161755 (E.E.O.C. Sep. 19, 2018)

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

Terrance S.,1
Complainant,

v.

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

Appeal No. 0120161755

Agency No. TVA-2014-0070

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final decision dated March 17, 2016, finding no discrimination
concerning his complaint alleging employment discrimination in violation of the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For
the following reasons, we AFFIRM the Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Manager of
Environmental Services at the Agency’s Environmental Monitoring and Analysis (EMA) group
until he was terminated from his employment at the Agency via an involuntary reduction in force
effective September 22, 2014.

On November 12, 2014, Complainant filed his complaint alleging discrimination based on age
(over 40) when he was not selected for the following positions:

(1) Southeast Regional Manager;
(2) Northeast Regional Manager;
(3) Southwest Regional Manager;

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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(4) Northwest Regional Manager;
(5) Field Services Manager;
(6) Program Manager of Compliance (3 positions);
(7) Environmental Scientist B;
(8) Regional Environmental Scientist C under Job No. 500562;
(9) Regional Environmental Scientist C under Job No. 500563;
(10) Regional Environmental Scientist C under Job No. 500565;
(11) Regional Environmental Scientist C under Job No. 500566;
(12) Regional Scientist under Job No. 501143;
(13) Regional Scientist under Job No. 501523;
(14) Environmental Engineer under Job No.502014;
(15) Environmental Scientist at Sequoyah Nuclear Plant and/or Browns Ferry Nuclear
Plant under Job No. 501233;
(16) Project Manager under Job No. 501568;
(17) Analyst, Energy Market II under Job No. 501671;
(18) Chem-Lab Technician A under Job No. 501781;
(19) Contracts Manager under Job No. 501781;
(20) Director of Enterprise Information Security & Policy under Job No. 501777;
(21) EAM Program Manager under Job No. 501764;
(22) Engineering General Technician under Job No. 501729;
(23) Hydrology Civil Engineer under Job No. 501676;
(24) Instructional CIP Specialist I under Job No. 501691;
(25) Instrumentation Engineer A under Job No. 501715;
(26) Logistics Specialist under Job No. 501696;
(27) Manager, Architecture & Engineering under Job No. 501645;
(28) Manager, Distribution Center under Job No. 501551;
(29) Mechanical System Engineer B under Job No. 501694;
(30) Power Utilization Engineer B under Job No. 501740;
(31) Power Utilization Engineer B under Job No. 501770;
(32) Program Manager, Diversity Training under Job No. 501788;
(33) Program Manager, Energy Utilization and Marketing under Job No. 501749;
(34) Program Manager, Transmission Support Services under Job No. 501824;
(35) Project Control Specialist B under Job No. 501596;
(36) Project Manager under Job No. 501659;
(37) Real Estate Strategy Senior Analyst under Job No. 501772;
(38) Scheduler, Power Services Shops B under Job No. 501820;
(39) Senior Program Manager, NERC Compliance Standards Support under Job No.
501805;
(40) Specialist, Resource Planning II under Job No. 501737;
(41) Specialist I, Transmission Interchange Services System Operator under Job No.
501669;
(42) Specialist, Supply Chain & Facilities Business under Job No. 501724;
(43) Specialist, Transmission Reliability Engineering & Control under Job No.
501823;
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(44) Specialist, UND Coordinator under Job No. 501806; and
(45) Trainee Specialist, System Operator Initial Training Program under Job No.
501644.2

On February 13, 2015, the Agency dismissed claims (22), (32), (40), and (43) for failure to state
a claim and accepted the remaining claims for investigation. After completion of the
investigation of the accepted claims, Complainant did not request a hearing before an EEOC
Administrative Judge (AJ). The Agency issued its final Agency decision concluding that it
asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut.

ANALYSIS AND FINDINGS

Upon review, we find that the Agency properly dismissed claims (22), (32), (40), and (43) for
failure to state a claim. 29 C.F.R. § 1614.107(a)(1). The Agency indicated that the Job Nos.
identified therein were either not filled or canceled without making a selection. Complainant
does not dispute this and does not challenge the dismissal of these claims on appeal. Therefore,
we shall not further address the dismissal of these claims.

Regarding the remaining claims, 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 (EEO MD-110), Chap. 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").

After a review of the record, assuming arguendo that Complainant had established a prima facie
case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incidents. The record indicates that Complainant (age 45), a Manager,
Environment Service, had been employed by the Agency since 1989. Due to the Agency’s
reorganization in late 2013 and early 2014, over 2,000 employee positions, including

2 In the instant complaint, Complainant also alleged that he was discriminated against based on
his age when he was removed via a reduction in force effective September 22, 2014. The subject
issue was bifurcated for processing. On July 30, 2015, the Agency issued its final decision
finding no discrimination regarding the removal. Upon Complainant’s appeal, the Merit Systems
Protection Board (MSPB) issued its initial decision not sustaining the Agency’s removal action
but finding no age discrimination. Upon the Agency’s petition for review, the MSPB, in Docket
No. AT-0351-15-0817-I-1 (September 30, 2016), issued its final order and granted the Agency’s
petition for review and reversed its initial decision. Therein, the MSPB sustained the Agency’s
removal action and affirmed its initial decision finding no age discrimination. Complainant is not
challenging his removal in the instant appeal.
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Complainant’s position, were eliminated as a part of the cost-cutting effort. Meanwhile,
Complainant sought other positions at the Agency in an effort to continue his employment.
Complainant was unsuccessful in obtaining another position at the Agency and his employment
was terminated via an involuntary reduction in force on September 22, 2014. Complainant’s
termination is not at issue. Complainant had a bachelor’s degree in Chemical Engineering and a
master’s degree in Engineering Management, Concentration: Construction Management.

The Agency indicated that for its selection process via vacant job announcements posting, its
Human Resources staff initially reviewed the applications/resumes and determined candidates’
eligibility for the job. The Human Resources then referred those eligible applicants to the hiring
manager who conducted a records review and interviews. The hiring manager scored the
applicants’ applications/resumes in the selection matrix based on their years of service,
education, and required qualifications. Based on the scores from the records review, the hiring
manager then determined which candidates to interview. The interviews were scored and the
scores were also placed in the selection matrix, along with the records review scores, which
provided a relative ranking of the qualified candidates. Generally, the hiring manager selected
the highest scoring candidate for the position at issue. The Agency stated that for upper level
management positions, the hiring manager might make a direct selection to fill that position
without posting vacant positions.

Regarding claims (1) - (6), the hiring manager indicated that he directly selected selectees for the
respective positions because they had been performing the same job and very similar functions
before the Agency’s reorganization. They were already supervising environmental scientists
and/or performing environmental compliance activities which was the experience required for
the positions. Complainant did not supervise any environmental scientists or technicians
performing compliance activities.

Regarding claims (8) and (9), Complainant did not apply for the positions at issue.

Regarding claims (10) - (12), (14), (15), (18)- (21), (23) - (29), (31), (33), (35) - (39), (41), (42),
(44), and (45), Complainant was not referred for an interview for the positions because he either
did not meet the minimum qualifications for the positions or did not score well on his records
review. Complainant lacked the experience required for the respective positions.

Regarding claim (13), Complainant was interviewed but was not selected because his combined
records review and interview score was 67.2, which was considerably lower than what the hiring
manager expected. Later, the Agency reposted the position and the hiring manager selected a
selectee who received the combined records review and interview score of 80.4. The selectee
had greater knowledge of the position at issue.

Regarding claims (7), (16), (17), (30), and (34), Complainant was referred for an interview.
Complainant however did not do well during his interview. The selectees with the highest total
score based on the records review and the interview were selected for the positions.

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Furthermore, the selectees for the positions in claims (2), (3), (5), (12), (21), (27), (30), (31),
(33), (39), (42) and (44) were the same age as Complainant, or older, or not substantially
younger than Complainant.

After a review of the record, we find that Complainant failed to show that the Agency’s
articulated reasons were a mere pretext for discrimination. We also find that Complainant failed
to show that his qualifications for the positions were plainly superior to the selectees’
qualifications. See Wasser v. Department of Labor, EEOC Request No. 05940058 (November 2,
1995). Based on the foregoing, we find that Complainant has failed to show that the Agency’s
actions were motivated by discrimination as he alleged.

CONCLUSION

Accordingly, the Agency’s final decision is AFFIRMED.

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.
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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

September 19, 2018
Date