William B. Brown, Complainant,v.Tom Kilgore, President and Chief Executive Officer, Tennessee Valley Authority, Agency.

Equal Employment Opportunity CommissionApr 30, 2010
0120080374 (E.E.O.C. Apr. 30, 2010)

0120080374

04-30-2010

William B. Brown, Complainant, v. Tom Kilgore, President and Chief Executive Officer, Tennessee Valley Authority, Agency.


William B. Brown,

Complainant,

v.

Tom Kilgore,

President and Chief Executive Officer,

Tennessee Valley Authority,

Agency.

Appeal No. 0120080374

Hearing No. 490-2006-00218X

Agency No. 03312006027

DECISION

On October 23, 2007, complainant filed an appeal from the agency's

September 25, 2007 final order concerning his equal employment opportunity

(EEO) complaint alleging employment discrimination in violation of Section

501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,

29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of

1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is deemed

timely and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the

following reasons, the Commission AFFIRMS the agency's final order.

ISSUES PRESENTED

1. Whether the EEOC Administrative Judge (AJ) properly issued a decision

without a hearing.

2. Whether the AJ properly found that complainant was not subjected to

discrimination on the bases of disability and age.

BACKGROUND

The record reveals that complainant previously worked as an Augmented

Electrician for the engineering company Stone & Webster. Stone &

Webster assigned complainant to work as a contract electrician at the

agency's Sequoyah, Tennessee Nuclear Plant. On or about January 3,

2006, the agency did not renew complainant's contract assignment, and

complainant was terminated from his position.

On March 31, 2006, complainant filed an EEO complaint alleging that he

was discriminated against on the bases of disability (Hepatitis) and age

(50 years old) when:

1. On or about January 3, 2006, complainant was terminated from his

assignment at the Sequoyah Nuclear Plant;

2. In January 2006, the agency failed to select him for a Maintenance

Specialist Relay position pursuant to Requisition No. 1000001531 at

Sequoyah Nuclear Plant;

3. In January 2006, the agency failed to select him for the position

of Supervisor of Shift Field, Requisition No. 1000001472, at Sequoyah

Nuclear Plant; and,

4. In January 2006, the agency failed to select him for the Electrician

Operations and Maintenance, Power Systems Operations position at Watts

Bar Nuclear Plant, Vacancy Announcement No. 021544.

In an investigative statement, the Transmission Service Manager for

Sequoyah stated that they did not renew complainant's contract with

the agency because the agency knew that work would be sparse after the

expiration of the contract, and complainant's assistance would no longer

be needed.

The Maintenance Support Manager stated that although complainant

applied for and was eligible for the claim 2 position, the agency

had not interviewed candidates for the position or made a selection.1

He also testified that the position had not been filled at the time

he gave his statement because "there has not been time to stop and

review the applications to make a determination for the most qualified

candidate." Investigative Report, p. 99.

The Modifications Superintendent at Sequoyah testified that complainant

was not selected for the claim 3 position because he never received

an application from complainant for the position. He stated that two

internal candidates and one external candidate were interviewed for

the position. He further stated that he selected an external applicant

for this position who appeared to be in the mid-40's age range.

The agency's Manager of Rotational Management Development stated that

the agency created Requisition No. 1000001472 for the claim 3 position

on January 23, 2006, and solicited external applicants. She stated that

complainant applied for the position, but complainant's application and

resume were not sent to management for consideration because complainant

did not meet three of the minimum requirements of the position listed

in the job description. Specifically, she stated that complainant's

application indicated that he had minimal supervisory experience and

did not indicate that he had any nondestructive testing experience

or extensive knowledge of nuclear plant design and construction.

She stated that she was not aware of complainant's age or disability

when she determined that complainant was not qualified for the position.

The Transmission Service Manager at Watts Bar stated that complainant

was not selected for the claim 4 position under Vacancy Announcement

No. 021544 because this position was only advertised and reserved for

internal agency candidates; therefore, complainant was not even qualified

to apply for the position.

The agency's Human Resources Consultant stated that Vacancy Announcement

No. 021544 was issued in summer 2005 for internal applicants. She stated

that complainant was not eligible to apply for this position because the

position was an internally advertised position for which only agency

employees could apply. She further stated that no one was selected

for the claim 4 position through Vacancy Announcement No. 021544.

She stated that because no one was selected pursuant to Vacancy

Announcement No. 021544, external Requisition No. 1000001033 was issued

seeking external applicants, but complainant did not apply pursuant for

Requisition No. 1000001033.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of his right to request

a hearing before an AJ. Complainant timely requested a hearing.

On January 4, 2007, the agency filed a motion for a decision without

a hearing, to which complainant responded in opposition on February

2, 2007. In a decision dated August 14, 2007, the AJ issued a decision

without a hearing in which she found that complainant was not subjected

to unlawful discrimination.

Specifically, the AJ found that complainant failed to establish that he

had standing to challenge the claim 4 non-selection because the position

was only open to agency employees at the time complainant applied, and

complainant was not an agency employee at the time of the non-selection.

The AJ also determined that although the claim 4 position was readvertised

so that external applicants could apply, complainant failed to reapply

under the external requisition number. The AJ further stated, "It is

important to note that no selection was ever made for this position

[claim 4 position]." AJ's Decision, p. 4.

With respect to complainant's non-selections for the claim 2 and claim 3

positions, the AJ determined that at the time that complainant filed his

complaint, the selections had not been made. "Based on the foregoing,

I find Complainant failed to establish that he has standing as he failed

to establish an 'injury in fact' that has a 'direct, personal deprivation

at the hands of the employer, that is, a present and unresolved harm

or loss affecting a term, condition, or privilege of his employment."

AJ's Decision, p. 5.

Additionally, the AJ concluded that even assuming that complainant has

standing with respect to the non-selections, he failed to establish

prima facie cases of discrimination for the non-selections. Regarding

complainant's termination, the AJ determined that complainant failed to

establish that the agency discriminated against him because the record

reflected that complainant's contract expired on December 30, 2005,

and the agency did not renew the contract due to the low volume of work.

The agency subsequently issued a final order adopting the AJ's finding

that complainant failed to prove that he was subjected to discrimination

as alleged.

CONTENTIONS ON APPEAL

On appeal, complainant contends that he is entitled to a position with

the agency because he was treated equally to agency employees when he

was a contract Augmented Electrician. Complainant contends that he

hand-delivered his application for the claim 4 position under Vacancy

Announcement No. 021544. Complainant further contends that the AJ erred

in her decision when she found that no one was selected for the claim

4 position. Complainant contends that a younger applicant was offered

the position. The agency requests that we affirm its final order.

ANALYSIS AND FINDINGS

In rendering this appellate decision we must scrutinize the AJ's legal and

factual conclusions, and the agency's final order adopting them, de novo.

See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from

an agency's final action shall be based on a de novo review . . ."); see

also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999)

(providing that an administrative judge's "decision to issue a decision

without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed

de novo"). This essentially means that we should look at this case

with fresh eyes. In other words, we are free to accept (if accurate)

or reject (if erroneous) the AJ's, and agency's, factual conclusions and

legal analysis - including on the ultimate fact of whether intentional

discrimination occurred, and on the legal issue of whether any federal

employment discrimination statute was violated. See id. at Chapter 9,

� VI.A. (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").

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. In the

context of an administrative proceeding, an AJ may properly consider

issuing a decision without holding a hearing only upon a determination

that the record has been adequately developed for summary disposition.

See Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11,

2003). We find that the AJ properly issued a decision without a hearing

because complainant failed to show that a genuine issue of material fact

or credibility existed.

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). Complainant

must initially establish a prima facie case by demonstrating that he or

she 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). Proof of a prima facie case will

vary depending on the facts of the particular case. McDonnell Douglas,

411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate

a legitimate, nondiscriminatory reason for its actions. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately

prevail, complainant must prove, by a preponderance of the evidence, that

the agency's explanation is pretextual. Reeves v. Sanderson Plumbing

Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor

Center v. Hicks, 509 U.S. 502, 519 (1993).

For purposes of analysis, we assume arguendo that complainant is an

individual with a disability and established a prima facie case of

unlawful discrimination. Nonetheless, we find that the agency offered

legitimate, non-discriminatory reasons for its actions. Specifically,

the agency explained that complainant's contract assignment was not

renewed because there was insufficient workload to warrant the extension

of complainant's contract. The agency further stated that the claim 2

position had not been filled because the agency had not reviewed the

candidate's applications and arranged interviews for the position.

The agency stated that complainant was not selected for the claim 3

position because his application did not indicate that he met the minimum

qualifications for the position. The agency also stated that complainant

was not selected for the claim 4 position because he incorrectly applied

under the internal vacancy number when the vacancy announcement was

restricted to agency employees and failed to apply for the position when

it was reannounced under an external requisition number.

Complainant maintains that he hand-delivered his application for

the claim 4 position pursuant to Vacancy Announcement No. 021544.

The agency does not dispute that complainant delivered his application

for Vacancy Announcement No. 021544. Nevertheless, the record reveals

that Vacancy Announcement No. 021544 was reserved for agency employees;

thus, complainant was ineligible to apply under this internal vacancy

announcement.

Complainant also maintains that he emailed his application to the

agency when the claim 4 position was readvertised under Requisition

No. 1000001033. However, the record contains documentation that tracked

the applicants who applied for the claim 4 position under Requisition

No. 1000001033. The documentation indicates that complainant did not

apply for the position under Requisition No. 1000001033. Complainant has

not produced any evidence demonstrating that he sent his application to

the agency under the external vacancy announcement. We note that when

a party moves for a decision without a hearing, such as the agency did

here, the non-moving party's opposition must consist of more than mere

unsupported allegations or denials and must be supported by affidavits

or other competent evidence setting forth specific facts showing that

there is a genuine issue for a hearing. See Celotex, 477 U.S. at 324.

Complainant further contends that the AJ erred in her decision when she

found that no one was selected for the claim 4 position. Complainant is

correct that the AJ made a factual error when she concluded that the

agency did not select anyone for this position. The record clearly

reveals that an applicant was ultimately selected for the claim 4 position

under No. 1000001033. Nevertheless, complainant failed to provide any

evidence from which a reasonable fact-finder could conclude that the

agency's non-discriminatory reasons for not selecting complainant were

pretext for unlawful discrimination.

Finally, complainant contends that he should have been eligible for

positions reserved for internal applicants because the agency treated

him as equal to an agency employee "for the most part." However,

the agency's courteous treatment of complainant did not entitle him to

be officially treated as an internal applicant when he was in fact an

external applicant.

Thus, we find that complainant failed to provide any evidence from which

it could be reasonably concluded that the agency's non-discriminatory

explanations were pretext for unlawful discrimination. Consequently,

we find that the AJ properly found no discrimination for the reasons

set forth in this decision.

CONCLUSION

Accordingly, after a review of the record in its entirety, including

consideration of all statements submitted on appeal, it is the

decision of the Equal Employment Opportunity Commission to AFFIRM the

agency's final order, because the Administrative Judge's issuance of

a decision without a hearing was appropriate, and a preponderance of

the record evidence does not establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 77960,

Washington, DC 20013. 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 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 (S0408)

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 (Z1008)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request from the Court that

the Court appoint an attorney to represent you and that the Court also

permit you to file the action without payment of fees, costs, or other

security. See Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,

29 U.S.C. �� 791, 794(c). The grant or denial of the request is within

the sole discretion of the Court. Filing a request for an attorney with

the Court does not extend your time in which to file a civil action.

Both the request and the civil action must be filed within the time

limits as stated in the paragraph above ("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

_____4/30/10_____________

Date

1 We note that the Maintenance Support Manager's statement was taken on

June 20, 2006.

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0120080374

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120080374