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

Equal Employment Opportunity Commission

Feb 16, 2017

0120143247 (E.E.O.C. Feb. 16, 2017)

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

Brenton W.,1
Complainant,

v.

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

Appeal No. 0120143247

Agency No. TVA-2014-0002

DECISION

On August 26, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s July 28, 2014, final decision concerning his equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Our review is de novo. For the
following reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Maintenance
Supervisor at the Agency’s Bull Run Fossil Plant near Oak Ridge, Tennessee.

On November 14, 2013, Complainant filed an EEO complaint wherein he claimed that the
Agency discriminated against him on the basis of his race (African-American) when:

1. On or about September 9, 2013, Complainant was not selected nor given the
opportunity to interview as an FPG Operations Supervisor on VPA No. 32848 at
the Bull Run facility;

2. On or about September 27, 2013, Complainant learned that he was denied the
opportunity to apply for a Maintenance Supervisor position at the Kingston facility;

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 October 4, 2013, Complainant learned about an open Outage
Coordinator position and was not offered the position, nor given the opportunity to
interview for the position;

4. Complainant was denied equal opportunity to rotate as the Maintenance Manager
for training, experience, knowledge and preparation for an upper management
position while a white non-supervisor and white supervisor with less
supervisor/management experience, and education were given more opportunities;

5. On or about October 7, 2013, Complainant was unfairly transferred out of the Bull
Run facility and forced to report to the Shawnee, Kentucky facility;

6. On or about October 7, 2013, Complainant was forced to resign his employment
with the Agency after he could not accept the transfer to the Shawnee facility;

7. On or about August 2, 2013, Complainant was not given the opportunity to apply
for an Outage Supervisor position at the Bull Run facility; and

8. On or about February 22, 2013, Complainant was subjected to harassment on the
basis of his race when a former Maintenance Manager threatened to send him home
for wanting to reschedule a meeting with him and his employment was threatened
while Plant Management did nothing about the incident.

The Agency accepted claims (1-6) for investigation. Claims (7-8) were dismissed pursuant to
29 C.F.R. § 1614.107(a)(2) on the grounds that Complainant failed to initiate contact with an
EEO Counselor in a timely manner. The Agency stated that Complainant initiated contact with
an EEO Counselor on October 7, 2013, which was after the expiration of the 45-day limitation
period.2

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s
request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).

The Agency determined that Complainant failed to prove that it subjected him to discrimination
as alleged. With regard to the selection at issue in claim (1), the Agency noted that
Complainant claimed that he should have been selected based on his status as a surplus salary
employee with supervisory experience in contrast to the selectee who allegedly lacked
equivalent qualifications. The Agency determined that Complainant did not meet the minimum

2 Complainant raised no challenges to the Agency's dismissal on appeal; therefore, the
Commission will not address those claims further in this decision.

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requirements for the position since his Bachelor’s Degree was not in a technical field and was
not obtained until May 2014, almost a year after the position closed. Further, the Agency
pointed out that Complainant possessed three years of experience in a power plant which fell
short of the five-year requirement. According to a recruitment official, the failure to meet the
vacancy announcement’s minimum qualifications resulted in an automatic cessation of the
selection process. The Agency determined that Complainant failed to set forth a prima facie
case of race discrimination because Complainant did not meet the minimum qualifications for
the position.

Assuming arguendo that Complainant established a prima facie case of race discrimination, the
Agency noted that the selectee met the minimum requirements for the position as he had
qualifications to administer cleaning processes, fire brigade leadership, electrical switching
operator qualifications, and a current status as a unit operator, which is the equivalent of
completing an operations supervisor training plan. The Agency further stated that the selectee
acquired technical experience in the United States Navy as an electrical technician from 1990
to 1994. The Agency explained that Complainant failed to successfully complete a fully-
qualified operations supervisor training plan within the stipulated time frame and his lack of
unit operator experience alone disqualified him from consideration. The Agency determined
that it articulated legitimate, nondiscriminatory reasons for its selection decision.

With regard to Complainant’s attempt to establish pretext, the Agency rejected Complainant’s
argument that he was more qualified than the selectee because he had more years of
supervisory experience. The Agency noted that more years of experience does not necessarily
make an individual more qualified for the position. The Agency stated that the selectee was
more qualified than Complainant and that Complainant was removed from the selection process
because he did not meet the minimum job qualifications. The Agency asserted that Caucasian
candidates who did not meet these qualifications were also removed from the selection process.

As for claim (2), the Agency stated that a Maintenance Supervisor position at the Kingston
facility was inadvertently announced. According to the Agency, the open position was actually
a Mechanical Maintenance Foreman position. The Agency determined that Complainant failed
to establish a prima facie case of race discrimination as there was no vacant Maintenance
Supervisor position because the Agency stated that an individual (Caucasian) affected by the
cutbacks during the retirement of the John Sevier Fossil Plant was directly placed in the
Maintenance Supervisor position by “corporate management.” The Agency explained that the
individual was placed in the position because it was the most similar position available after his
former position was eliminated. The Agency noted that the agreement to place the individual
as a Maintenance Supervisor occurred before Complainant was surplused. The Agency stated
that there was no evidence that this individual’s placement arose from any racial bias or that
management had any advance knowledge that this placement would affect Complainant at a
later date.

Complainant attempted to establish pretext by arguing that “the good ole boy system”
adversely impacted him since he was qualified based on his previous experience as a
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Maintenance Supervisor. The Agency rejected this contention stating that the “good ole boy
system” did not affect hiring procedures but rather the individual was well-qualified for the
position and his placement was the result of a 2011 agreement that could not be fulfilled and
therefore the individual was placed in the closest equivalent position, the Maintenance
Supervisor position at Kingston.

With respect to claim (3), the Agency determined that Complainant did not set forth a prima
facie case of race discrimination. The Agency stated that management decided not to hire
another Outage Coordinator due to a reorganization that resulted in ongoing personnel and
budget cuts. According to the Agency, no one, regardless of race, was afforded the
opportunity to interview for the position. The Agency stated that management distributed the
excess workload among several employees.

Complainant argued that not being offered the Outage Coordinator position at the Bull Run
facility was attributable to the “good ole boy system’s” effect on hiring procedures. The
Agency noted that Complainant claimed that three Caucasian employees were given
opportunities to stay at Bull Run after originally being told they were surplused. However, the
Agency reiterated that management did not fill the Outage Coordinator position due to ongoing
personnel reductions.

In terms of claim (4), Complainant claimed that he was denied rotation experience as a
Maintenance Manager. Complainant argued that management only wanted a Caucasian
employee to rotate in as Maintenance Manager. Further, Complainant stated that only another
Caucasian employee was allowed to fill in when this first Caucasian employee was on medical
leave for nine weeks. Complainant maintained that this second Caucasian employee, the
Workweek Program Manager, lacked both supervisory experience and the authority to
supervise employees. According to the Agency, the rotation schedule was primarily based on
knowledge of the plant and understanding the Plant Manager's job, to which Complainant was
still becoming accustomed. A management official asserted that Complainant had equal if not
more opportunities to rotate but any discrepancies were due to Complainant’s attendance. This
official noted that Complainant was not there all the time when he was needed to fill in.
According to this official, Complainant’s unavailability for work due to personal issues at
home made it difficult for him to depend on Complainant. The Agency stated that there were
thirteen emails over a three-month period in which Complainant gave notification that he was
going to be late. The Agency pointed out that Complainant was afforded three opportunities to
fill in at maintenance peer team meetings in Nashville during a three-month period and the
Caucasian comparisons only filled in once apiece.

The Agency determined that Complainant did not establish a prima facie case of race
discrimination with regard to claim (4). The Agency reasoned that Complainant was not
subject to an adverse employment action since he was not denied the opportunity to rotate in as
a Maintenance Manager and individuals outside his protected class were not treated differently.
In addition to the aforementioned circumstances, the Agency noted that on June 18, 2013,
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management indiscriminately emailed all Maintenance Supervisors, including Complainant and
others outside his protected class, asking for a volunteer to rotate in as Maintenance Manager.

The Agency found that Complainant failed to establish that its reasons for its rotations were
pretext. The Agency stated that its actions were based on management’s need to utilize the
most senior and experienced individual as Maintenance Manager during a manager’s absence
and that Complainant’s inconsistent, unreliable work attendance, along with not fully
understanding the position, factored into him receiving fewer rotations.

With respect to claim (5), the record reveals that Complainant was transferred from the Bull
Run facility because the reduction-in-force eliminated Complainant’s Maintenance Supervisor
position. Complainant was rendered a surplus employee given that there was another
Maintenance Manager with more seniority. The Agency stated that employee retentions were
based on tenure, veteran status, and years of credible service. With regard to tenure,
preference was given to permanent employees who were characterized as employees with more
than four years of experience. The veteran status factor gave preference to veterans with
service-connected disabilities. The years of credible service determined an employee’s
retention standing after the release date from the affected competitive level.

The Agency determined that Complainant failed to establish a prima facie case of race
discrimination. The Agency noted that the Maintenance Supervisor who was retained had
more seniority than Complainant. Complainant claimed that two Caucasian employees were
discriminatorily allowed to remain at the Bull Run facility. According to the Agency, these
employees were in a different situation than Complainant. The Agency explained that the
comparisons were allowed to stay as a result of being union-represented employees. The
Agency stated that with union-represented employees, any moves or retentions are sanctioned
by the union, and M & S employees, including Complainant, could not bump a union
employee from a position.

Complainant’s argument focused on the Workweek Program Manager, who acted as a
temporary supervisor performing Maintenance Supervisor duties and was allowed to stay at the
Bull Run facility. Complainant stated that he had the second most seniority among the
Maintenance Supervisors and the hiring matrix listed two available Maintenance Supervisor
positions at the Bull Run facility. The Agency stated that this was not correct as it resulted
from a mistake made in an official’s personal notes and did not reflect the Agency’s hiring
plan. According to the Agency, the Workweek Program Manager was an intermittent
supervisor who was used to supervise employees in the absence of other supervisors. The
Agency stated that this employee’s position was Workweek Program Manager and this position
was not affected by the reduction-in-force. The Agency explained that the budget and
personnel cuts increased the value of Program Managers’ dual functions as they provided the
Agency with a more flexible work force with the ability to supervise both in-house
maintenance personnel and contract personnel, a qualification Complainant lacked.

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With regard to his transfer to the Shawnee, Kentucky facility, the Agency stated that on August
26, 2013, Complainant signed a voluntary transfer to a Supervisor, FPG Outage position at the
same competitive level, with the same title, grade and salary. The Agency determined that the
transfer did not constitute an adverse employment action and thus Complainant failed to set
forth a prima facie case of race discrimination.

As for claim (6), Complainant claimed that he was forced to resign from the Agency. The
Agency determined that Complainant did not set forth a prima facie case of race discrimination
given that on October 7, 2013, the day he was supposed to have commenced work at the
Shawnee facility, Complainant voluntarily sent a resignation email and management had no
influence on this decision. The Agency noted that Complainant cited personal issues as being
the cause for his resignation. The Agency concluded that Complainant had not shown that he
had been discriminated against based on his race. Complainant filed the instant appeal.

CONTENTIONS ON APPEAL

On appeal, Complainant contends with regard to claim (1) that he was more qualified than the
selectee. According to Complainant, the selectee had no documented supervisory experience
and only a non-technical two-year degree. Complainant acknowledges that the selectee had
five years of power plant experience but he points out that he possessed two years and ten
months of supervisory experience in a power plant. Complainant states that the selectee was a
Union employee who was allowed to fill a salaried position. Complainant states that he was a
salaried surplus employee who could have filled the position at issue with additional training.
With respect to claim (2), Complainant maintains that given the Bull Run facility was the only
facility surplusing Maintenance Supervisors and he was the most senior Maintenance
Supervisor considered surplus, he should have been interviewed, offered, or placed in the
Maintenance Supervisor position at the Kingston facility. Complainant states that he was
considered surplus on or around June 17, 2013, and the individual transferred into the
Kingston position was not offered the position until August 20, 2013.

With regard to claim (3), Complainant argues that he was denied the opportunity to move into
the Outage Coordinator position. Complainant states that this position was listed on the Bull
Run facility 2014 organizational chart even after the prior incumbent of the position took
another position in November 2013. Complainant states that the prior incumbent had been
allowed to stay past October 4, 2013, as she was Caucasian and protected by plant
management.

In terms of claim (4), Complainant maintains that he was denied equal opportunities to rotate
to the Maintenance Manager position from December 2010 through October 2013.
Complainant states that the Workweek Program Manager was given more opportunities toward
the end of Complainant’s tenure to fill in for the Maintenance Manager even though his
position was non-supervisory. Complainant disputes the Agency’s assertion that his attendance
was a factor in him not securing more rotation opportunities. Complainant states that he was
never counseled or reprimanded about his attendance.
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With respect to claim (5), Complainant challenges his transfer from the Bull Run facility by
arguing that in effect there were two Maintenance Supervisors rather than one after he left the
facility. According to Complainant, at a staff meeting on October 7, 2013, a management
official presented a Maintenance Organization chart that listed two Maintenance Supervisors,
including the employee that had been the Workweek Program Manager. Complainant
maintains that this proves it was not a mistake on the management official’s part when he listed
two Maintenance Supervisors. Complainant states that the Workweek Program Manager’s job
description only allowed him to cover workweek and not to manage.

In its brief in response to Complainant’s appeal, the Agency reiterates the reasons for its
conclusions as set forth in its final decision. The Agency explains that it was in the difficult
situation of seeking to find jobs during a business reduction and realignment for all the
surplused employees who wanted to stay with the Agency, but that it could not accommodate
every surplused employee’s first choice about where he/she wanted to work. The Agency
states that Complainant submitted a list of positions in which he was interested and he was
notified that he was selected for direct transfer to the position he listed third on his preference
list, the Shawnee Fossil Plant in Paducah, Kentucky. The Agency asserts that the fact that
Complainant did not receive his first choice of a position does not translate into race
discrimination.

ANALYSIS AND FINDINGS

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). He must generally 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 Constr. 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 802 n. 13.

The prima facie inquiry may be dispensed with where the Agency articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. 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). 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 Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. 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).

We shall assume arguendo that Complainant set forth a prima facie case of race discrimination
with regard to each of his claims. As to the nonselection at issue in claim (1), the Agency
stated that the selectee was chosen based on his fulfillment of the minimum requirements for
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the position as he had qualifications to administer cleaning processes, fire brigade leadership,
electrical switching operator qualifications, and a current status as a unit operator. The
Agency points out that Complainant admits he lacked the qualifications for the position. As for
claim (2), the Agency stated that an individual affected by the cutbacks during the retirement of
the John Sevier Fossil Plant was directly placed in the open position by corporate management.
The Agency explained that the individual was placed in the position because it was the most
similar position available after his former position was eliminated. The Agency noted that the
agreement to place the individual as a Maintenance Supervisor occurred before Complainant
was surplused.

With respect to claim (3), the Agency stated that management decided not to hire another
Outage Coordinator due to a reorganization that resulted in ongoing personnel and budget cuts.
According to the Agency, no one, regardless of race, was afforded the opportunity to interview
for the position. The Agency stated that management distributed the excess workload among
several employees. With regard to claim (4), the Agency stated that its actions were based on
management’s need to utilize the most senior and experienced individual as Maintenance
Manager during a manager’s absence and that Complainant’s inconsistent, unreliable work
attendance, along with not fully understanding the position, factored into him receiving fewer
rotations. The Agency points out that there were occasions when Complainant rotated in for
the Maintenance Manager more than his comparisons.

As for claim (5), the Agency stated that Complainant was transferred from the Bull Run
facility because the reduction-in-force eliminated Complainant’s Maintenance Supervisor
position. Complainant was rendered a surplus employee given that there was another
Maintenance Manager with more seniority. The Agency asserts that retention at the Bull Run
facility was based on tenure, veteran status, and years of creditable service. The Agency states
that Complainant chose to volunteer for a position at Shawnee so he could remain employed
with the Agency. In terms of claim (6), the Agency asserted that Complainant was not forced
to resign but rather Complainant voluntarily sent a resignation email and management had no
influence on this decision. The Agency states that it was Complainant’s personal decision
based on his desire to not relocate his family from the Knoxville area.

Complainant attempts to establish pretext as to claim (1) by emphasizing his credentials and
comparing them with those of the selectee. A review of Complainant’s qualifications,
however, reveals that Complainant lacked sufficient power plant experience and Complainant
also did not have a Bachelor’s Degree in a technical field at the time the position closed. We
find that Complainant has not established that the Agency’s explanation was pretext intended to
mask discriminatory motivation.

With regard to claim (2), Complainant argues that he should have had an opportunity to
compete for the Maintenance Supervisor position at the Kingston facility given he was the most
senior Maintenance Supervisor who had been surplused. We find though that Complainant’s
contention does not negate the Agency’s explanation that a prior agreement had been made by
management to place an individual affected by the cutbacks during the retirement of the John
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Sevier Fossil Plant in the open position. The Agency explained that the individual was placed
in the position because it was the most similar position available after his former position was
eliminated. We find that Complainant has not established that the Agency’s stated reasons
were pretext intended to hide discriminatory motivation.

As for claim (3), Complainant argues that he was denied the opportunity to move into the
Outage Coordinator position. Complainant attributes his treatment to the “good ole boy
system” in place but this argument does not refute the Agency’s explanation that management
decided not to hire another Outage Coordinator due to a reorganization that resulted in ongoing
personnel and budget cuts. With respect to claim (4), Complainant states that the Workweek
Program Manager had less supervisory experience than him but was afforded the majority of
the opportunities to rotate in for the Maintenance Manager. Complainant disputes that his
attendance issues were at the level claimed by the Agency. However, Complainant has not
presented sufficient evidence to refute the Agency’s assertion that his attendance record
justifiably factored into fewer rotation opportunities being available to him.

With regard to claim (5), Complainant maintains that he was unfairly transferred and that the
Workweek Program Manager had in effect become a Maintenance Supervisor. Complainant
stated that he had the second most seniority among the Maintenance Supervisors and the hiring
matrix listed two available Maintenance Supervisor positions at the Bull Run facility. The
Agency maintains that retention at the Bull Run facility was based on tenure, veteran status,
and years of creditable service. The Agency states that it was an official’s mistake when he
listed two Maintenance Supervisor positions on the Maintenance Organization chart for the
Bull Run facility after Complainant’s transfer.

Further, the Agency states that the Workweek Program Manager’s position was not affected by
the reduction-in-force. The Agency points out that the budget and personnel cuts increased the
value of Program Managers’ dual functions as they provided the Agency with a more flexible
work force with the ability to supervise both in-house maintenance personnel and contract
personnel, a qualification Complainant lacked. The Agency also states that other comparisons
cited by Complainant who were allowed to stay at Bull Run were union represented and that
with union represented employees, any moves or retentions are sanctioned by the union, and M
& S employees, including Complainant, could not bump a union employee from a position.
The Agency further asserts that Complainant was not forced to transfer to the Shawnee facility
as he listed Shawnee third on his preference list of facilities for transfer. We find that
Complainant has not established that the Agency’s reasons for his transfer were pretext
intended to hide discriminatory motivation.

With respect to claim (6), the record reveals that Complainant resigned from the Agency rather
than report to the Shawnee facility. Complainant decided that he did not want to relocate his
family from the Knoxville area to Paducah, Kentucky. The Agency was not obligated to
provide Complainant with his most preferred transfer site. The Agency did not force
Complainant to resign his employment. We find that Complainant has not established that his
resignation was attributable to discriminatory factors.
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CONCLUSION

The Agency’s determination that no discrimination occurred is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0416)

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), 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. The requests 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 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
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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

February 16, 2017
Date