U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Dick R.,1
Complainant,
v.
Bill Johnson,
President and Chief Executive Officer,
Tennessee Valley Authority,
Agency.
Appeal No. 0120180886
Agency No. TVA-2016-0064
DECISION
On January 6, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s December 8, 2017 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 worked as a Systems Engineer at the Agency’s Kingston
Fossil Plant, Tennessee Valley Authority (TVA) in Kingston Steam Plant, Tennessee.
On October 7, 2016, Complainant filed the instant formal complaint. Complainant claimed that
he was subjected to harassment/a hostile work environment based on race (Caucasian) and in
reprisal for prior EEO activity when:
1. the Agency refused to grant him retroactive tenure, pay and benefits from October 19,
2015 through January 25, 2016, when his hiring into TVA was unduly delayed;
2. on or around March 30, 2016, management told him that other engineers were
uncomfortable around him and that part of his duties were reassigned to another
engineer;
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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3. on or about March 31, 2016, management rebuked him in the presence of the entire
engineering staff for requesting information about the air preheater;
4. on or about April 1, 2016, management called a meeting and complained about
Complainant’s effort to increase steam temperature;
5. on or about April 7, 2016, during a presentation by the Capital Project Manager on
the Copperleaf software program, fellow engineers were referring to the software
program as “Brownleaf,” thereby insinuating an inappropriate reference. Also,
during the same meeting with upper management, the same fellow engineers were
using loud and foul language to describe and criticize the former engineering manager
for his management style and hiring decisions;
6. on or about April 14, 2016, a fellow engineer referred to Complainant as “Damn
Arabs” when he answered a question and stated that Complainant had worked for
ARAMCO;2
7. on or about April 18, 2016, the entire management team interrogated him for two
years regarding his wanting to do a 4-hour inspection of Unit 6 to verify root cause of
excessive leaks;
8. in or about April 2016 and May 2016, management told him that he should not keep
to himself and be a part of the team;
9. on or about April 25, 2016 through May 15, 2016, management required him to
undergo mandatory examinations;
10. on or about May 9, 2016, management laughed and did not intervene when an
engineer made an inappropriate sexual gesture toward Complainant during a meeting;
11. on or about May 24, 2016, during a meeting, management and Human Resources
officials told him not to take notes in front of other people and these officials did not
intervene and take action when Complainant reported inappropriate language used by
a co-worker;
12. on or about May 25, 2016, management accused him of violating the confined space
requirement and threatened to fire him;
13. on or about May 26, 2016, he was ordered to repeat a steam restriction test; and
2 ARAMCO is the abbreviation for Arabian American Oil Company, presently identified as
“Saudi Aramco.”
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14. on or about May 27, 2016, he was constructively discharged when he was forced to
resign from TVA or disobey an order from management.
After the investigation of the claims, the Agency provided Complainant with a copy of the report
of investigation and notice of the right to request a hearing before an EEOC Administrative
Judge. In accordance with Complainant’s request, the Agency issued a final decision on
December 8, 2017, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.
The instant appeal followed. Complainant did not submit a brief on appeal.
ANALYSIS AND FINDINGS
Hostile Work Environment (claims 1- 13)
To establish a claim of hostile environment harassment, Complainant must show that: (1) he
belongs to a statutorily protected class; (2) he was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class; (3) the harassment
complained of was based on his statutorily protected class; (4) the harassment affected a term or
condition of employment and/or had the purpose or effect of unreasonably interfering with the
work environment and/or creating an intimidating, hostile, or offensive work environment; and
(5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982).
In other words, to prove his harassment claim, Complainant must establish that he was subjected
to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s
position would have found the conduct to be hostile or abusive. Complainant must also prove
that the conduct was taken because of his protected bases – in this case, his race and prior
protected activity. Only if Complainant establishes both of those elements, hostility and motive,
will the question of Agency liability present itself.
During the relevant period, Complainant was a Systems Engineer in the Power Operations
Group. In August 2015, Complainant received an offer of employment to start work in October.
The position required the selected individual to pass a pre-employment medical examination.
During Complainant’s pre-employment medical examination, some complications occurred.
On September 18, 2015, Complainant underwent a standard onboarding medical evaluation
which included a vision test, hearing test, blood and urine analysis, drug screen and S3 and S4
examinations.3 Complainant’s vision and hearing were approved. However, he did not get an
approval on his urine analysis due to an “unacceptable” glucose level. The staff requested
further evaluation and provided Complainant with multiple ways to complete the examination.
The record reflects that Complainant refused further testing.
3 S3 and S4 examinations are to ensure that the individual can wear respiratory equipment.
01201808864
On September 28, 2015, the Manager, Talent Acquisition sent a letter to Complainant rescinding
his job offer for failing to submit a medical test. The Manager placed Complainant on notice that
he has fourteen (14) calendar days from the receipt of the letter to request an appeal and provide
medical exam documentation.
Thereafter, on October 6, 2015, Complainant contacted an outside endocrinologist for an
evaluation requesting supporting documentation to show he could pass an S3/S4 examination.
On October 8, 2015, Complainant sent his medical appeal letter to the Agency. Several days
later, October 12, 2015, Complainant provided the Agency with a letter from the endocrinology
office advising that Complainant had been assessed and his health care needs were being
managed by an endocrinology consultant. Complainant’s appeal was denied on October 26,
2015 by an Agency physician, also the Medical Review Officer. The record reflects that
Complainant’s letter from endocrinology office was not provided to Medical Review Officer in
her review. On November 9, 2015, Complainant was given a notification that his appeal had
been denied.
On January 4, 2016, Complainant appealed his rescission a second time and he contacted the
EEO Counselor. On January 4, 2016, Complainant contacted a Talen Acquisitions Recruiter and
provided her with “a copy of the doctor’s medical record and blood test associated for the
concern that TVA had regarding the S3/S4 examination.” At that time, the Senior Manager
Employee Health and the Talent Acquisitions Recruiter agreed that there was enough evidence to
support hiring Complainant. Complainant was approved and started his job on January 25, 2016.
Regarding claim 1, Complainant asserted that the Agency refused to grant him retroactive tenure,
pay and benefits from October 19, 2015 through January 25, 2016, when his hiring into TVA
was unduly delayed.
The Human Resources (HR) Manager (Caucasian, unknown prior protected activity) noted that
Complainant found a local physician who would help provide him the documentation “he needed
to support that he was under a cared approach to his medical condition.” The HR Manager
acknowledged Complainant submitted the documentation “through the recruiter. The recruiter
would have provided us the documentation. It appears as though there was a lag in recruiting
getting it and then us turning around and getting it. It appears as though it was overlooked.” The
HR Manager stated that it was from her perspective that once Complainant submitted the
documentation to recruiting, they overlooked it or failed to timely transfer it to employee health.
The Talent Acquisition Consultant explained that the reason for the delay was the appeals
process and “how long that took, and then, of course, we don’t hire around the holidays. And
then the first hire date in January was January 4th [2016], but that’s when we put together all his
information he had sent over when he did send the actual medical thing. And Employee Health
evaluated it and confirmed that he was cleared for hire on January 4th, and we had to redo his
background check, because it had been greater than 30 days. And your background has to be
cleared within 30 days of hire, or we have to redo it. So we had to redo that at that time. So the
next hire date was when he [was] hired.”
01201808865
Regarding claim 2, Complainant alleged that on or around March 30, 2016, management told
him that other engineers were uncomfortable around him and part of his duties were reassigned
to another engineer.
The Engineering Supervisor (Caucasian, unknown prior protected activity) stated that he does
not recall telling Complainant that the other engineers were uncomfortable around him.
Specifically, the Supervisor stated that he, Complainant and the engineers “all worked with
change in different duties. But I don’t remember [any] of that.”
The temporary Engineering Supervisor (“Supervisor 2”) (Caucasian, unknown prior protected
activity) stated that Complainant had a tendency “to not want to accept others’ feedback. So, it
did lead to the point where other engineers were almost intimidated to bring up their thoughts
and opinions when he would start a conversation related to an engineering issue at the plant.”
Regarding claim 3, Complainant alleged that on or about March 31, 2016, management rebuked
him in front of the entire engineering staff for requesting information about the air preheater.
The Supervisor stated that it did not happen “in my meeting, but I heard about it through the
other engineers.” The Supervisor explained that there was no meeting and that in the
engineering office, Complainant wanted some information “on another system engineer system
and the other system engineer said that it was his system and… they didn’t want to give the
information to him.” Furthermore, the Supervisor stated that he was not aware why Complainant
wanted this particular information.
Supervisor 2 stated that he does not recall anyone rebuking Complaint in front of the entire
engineering staff.
Regarding claim 4, Complainant claimed that on or about April 1, 2016, management called a
meeting and complained about Complainant’s effort to increase steam temperature.
The Supervisor stated “I did not call a meeting for that. We just did that in the engineering office
[and] walked through it.” The Supervisor further stated that he did not say anything about
Complainant’s education “because I respected the man because I know he had a doctorate
degree, a PhD degree…[Complainant] did talk to [engineer] about some heat rate issues. So that
could have been very - - that could have been likely that he did talk to him about 1025 degrees.”
Supervisor 2 stated that he does not recall the April 2016 meeting but “there was definitely some
concern at the plant level over [Complainant’s] desire to increase the steam temperature without
doing any testing or verification that we could do it.”
Regarding claim 5, Complainant asserted that on or about April 7, 2016, during a presentation by
the Capital Project Manager on the Copperleaf software program, fellow engineers were
referring to the software program as “Brownleaf,” insinuating an inappropriate reference.
01201808866
Also, during the same meeting with upper management, the same fellow engineers were using
loud and foul language to describe and criticize the former engineering manager for his
management style and hiring decisions.
The Supervisor stated that he has heard that the engineers typically refer the Copperleaf system
as Brownleaf. The Supervisor explained that Copperleaf is a tool that they use to key “in capital
and small capital projects to get vetted to see if they’re worth doing.”
With respect to Complainant’s allegation that foul language was often spoken by many
employees, the Supervisor stated that he was not aware of it and “I would not have put up with
that. I would not have allowed that.”
Supervisor 2 explained that he and the engineers did not call Brownleaf “in reference to feces.
Yes, we had a nickname for Copperlead as Brownleaf, but that was - - that was not related to any
specific type of description…and I guess as part of stress relief in the department, you know,
when they have a new system, it changes how we do things, we, you know, make joking
nicknames, but that’s not in any way a reference to feces whatsoever nor is it disrespectful.”
Regarding claim 6, Complainant claimed that on or about April 14, 2016, a fellow engineer
referred to Complainant as “Damn Arabs” when he answered a question and stated that
Complainant had worked for ARAMCO.
Supervisor 2 denied referring Complainant as “Damn Arabs.” Specifically Supervisor 2 stated
“that is absolutely false and I’m somewhat offended that he would accuse me of that. I have
several friends from college that are from Saudi Arabia and Dubai. So, no, this is not true.”
Regarding claim 7, Complainant alleged that on or about April 18, 2016, the entire management
team interrogated him for two years regarding his wanting to do a 4-hour inspection of Unit 6 to
verify root cause of excessive leaks.
The Supervisor denied that the management team interrogated Complainant for approximately
two hours. Specifically, the Supervisor stated that the meeting did not last two hours and that “it
lasted maybe ten minutes. We just had to extend the outage, so we had to ask questions of why
are we extending the outage. So I mean it was not no interrogation. We just needed that
information so that we could put requests in to extend an outage.”
Regarding claim 8, Complainant claimed that in or about April 2016 and May 2016,
management told him that he should not keep to himself and be a part of the team.
The Supervisor acknowledged conducting a meeting in his office and he informed Complainant
“that I wanted it to be a team environment, I wanted [Complainant] to be with the team and ask
questions and be subject to getting questions asked. He told me he wanted to be left alone and
wanted me to move his office to another location. I told him no. We are going to be a team.”
01201808867
Regarding claim 9, Complainant asserted that on or about April 25, 2016 through May 15, 2016,
management required him to undergo mandatory exams.
The Supervisor stated that the nurse told him that she needed to see Complainant so “I just
passed that information to him and told him he had to go see her.” The Supervisor stated that
going through mandatory exams was part of Complainant’s employment.
Regarding claim 10, Complainant alleged that on or about May 9, 2016, management laughed
and did not intervene when an engineer made an inappropriate sexual gesture toward
Complainant during a meeting.
The Supervisor stated that he had no recollection of the alleged incident and “that would never
have been tolerated.”
Regarding claim 11, Complainant asserted that on or about May 24, 2016, during a meeting,
management and Human Resources told him not to take notes in front of other people and they
did not intervene and take action when Complainant reported inappropriate language used by a
co-worker.
The Supervisor stated that he did not observe or heard anyone say that Complainant took notes in
front of other people.
Regarding claim 12, Complainant claimed that on or about May 25, 2016, management accused
him of violating the confined space requirement and threatened to fire him.
Supervisor 2 explained there was never any accusation or threaten to fire “but, yes, there was
concern anonymously brought due to an inspection having been performed and he noted results
of the inspection without anybody ever having got on the clearance…and so, yes, there was an
investigation into whether or not a clearance was violated.”
Further, Supervisor 2 stated that it was not a confined space requirement that was in question and
“the question was whether or not somebody had signed onto a clearance to go into that area to do
the inspection and nobody had signed on to go do the inspection. So there was a concern
brought up that [Complainant] may have entered the - - the boundaries of the clearance without
singing on to it, which would be a period of safety violation.”
Here, Complainant simply has provided no evidence to support his claim that his treatment was
the result of his race and prior protected activity.
Complainant asserted that from October 19, 2015 to January 25, 2916, the Agency refused to
grant him retroactive pay, tenure and benefits when his hiring into Agency employment was
unduly delayed.
01201808868
However, the HR Manager explained when the pre-employment examination “first occurred to
when the medical documentation and the medical department was brought into it, there was a lot
of activity that occurred that he wouldn’t have been employed during that time at all until we
actually could say that he would have been approved for an S3/S4. So, I don’t think that he was
delayed by no means.”
Given the above discussion of the referenced claims, we determine that Complainant was not
subjected to a hostile work environment based on discriminatory factors or retaliatory animus for
his race and prior EEO activity,
Constructive Discharge (claims 13 and 14)
Regarding claim 14, Complainant asserted that on or about May 26, 2016, he was ordered to
repeat a steam restriction test and on or about May 27, 2016, he was forced to resign from
Agency employment or disobey an order from management. The matter identified in claim 13
is related to claim 14. We will therefore consider both claims in the context of constructive
discharge.
In essence, by arguing his resignation was coerced by the Agency's actions, Complainant is
raising a claim that he was constructively discharged. The Commission has established three
elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a
reasonable person in the complainant's position would have found the working conditions
intolerable; (2) the conduct that constituted discrimination against the complainant created the
intolerable working conditions; and (3) the complainant's involuntary resignation resulted from
the intolerable working conditions. Clemente M. v. Dept. of Veterans Affairs, EEOC Appeal
No. 0120160661 (March 11, 2016), citing Walch v. Dept. of Justice, EEOC Request No.
05940688 (Apr. 13, 1995).
Regarding claim 13, the Supervisor explained that Complainant wanted to do the steam
restriction test, but that another supervisor did want to do a steam test “because [Complainant]
didn’t follow the proper protocol with operations getting it set up.”
The Supervisor stated that in regard to claim 14, Complainant was not constructively discharged
after Complainant sent him an email saying that he wanted Supervisor 2 stay out of his business.
The Supervisor explained, however, that Supervisor 2 was the supervisor and “he would be
involved in any activities that engineering and the techs would go through. Above 30 minutes
later I got an e-mail back from [Complainant] saying he resigned and quit, [and that] he would
not work for [Supervisor 2].”
Here, in light of our finding that Complainant was not subjected to a hostile work environment as
discussed in some detail above, we conclude that Complainant has failed to prove that his
resignation was a constructive discharge from the Agency.
We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.
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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.
012018088610
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 19, 2019
Date
