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