0120121029
06-06-2012
Clevon D. Thirlkill, Complainant, v. Tom Kilgore, President and Chief Executive Officer, Tennessee Valley Authority, Agency.
Clevon D. Thirlkill,
Complainant,
v.
Tom Kilgore,
President and Chief Executive Officer,
Tennessee Valley Authority,
Agency.
Appeal No. 0120121029
Agency No. EO 2011039
DECISION
Complainant filed a timely appeal from the Agency's November 22, 2011 final decision concerning his equal employment opportunity (EEO) complaint alleging 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. Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal.
BACKGROUND
At the time of events giving rise to this complaint, Complainant (African American) worked as a Level 3 Electrician, and Temporary Electrical Instructor, at the Agency's Browns Ferry Nuclear Plant facility in Decatur, Alabama. He filed a prior EEO complaint against the former Planning Superintendent on April 30, 2010.
On March 26, 2011, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and reprisal for prior protected EEO activity under Title VII when he learned, on or about February 9, 2011, that the Agency did not offer him the opportunity to interview and did not select him for one of four Maintenance Specialist Nuclear (Electrical Planner) positions, which the Agency announced under Vacancy Announcement No. 27731. During EEO counseling, Complainant clarified that his issues were race-based in that the Agency employed no African-American males as Electrical Planners and denied African-American males opportunities that it provided to Caucasians and females. Therefore, we will also consider Complainant's claim to be one of race-plus discrimination (race plus gender).
The evidence gathered during the investigation into the complaint showed that on August 10, 2010, Complainant applied for the four Electrical Planner positions advertised under Vacancy Announcement No. 27731. Complainant's application indicated he had an electrical license, two associate degrees, and 19 years of electrical experience, 17 years of which were in the discipline of maintenance. Complainant also served as an Instructor and said that he had trained two of the Caucasians who were ultimately selected.
Neither Complainant nor any of the four African-American males who applied for the positions were offered an interview. Four Caucasian males, with no prior EEO activity, were selected for all four of the positions.
The record shows that there are three Trades and Labor Shops at Browns Ferry, and each shop had Planner positions. The Agency had no African-American Planners during the period at issue. Historically, none of the Planner positions were held by Blacks.
According to management statements, the decision of who to interview was based on a matrix established solely by the Planning Organization Superintendent (S1)1 at the Browns Ferry Nuclear Plant.2 S1 stated, "I came up with five criterions and put those into a grade matrix from zero to five based on their qualifications and how they fell out, when I did get their records reviews and resumes." After S1 reviewed the resumes, he determined the scores to be assigned, and placed the criteria scores in the grade matrix, before forwarding the matrix to the Employee Relations Specialist in Human Resources (S2) for her review and approval. The record shows that S2 had participated in Complainant's first complaint, which was settled in November 2010.
S1 said he established five criteria: 1) technical / specialized expertise; 2) maintenance craft experience; 3) Maximo computer skills; 4) maintenance work order planning experience, and 5) education. After reviewing the applications, the resumes and the Human Resources (HR) records, S1 considered the number of "those that I wanted to interview." Of the 35 applicants, he "drew the line in the sand" and sixteen were offered interviews. S1 stated that he, alone, made the decision to establish the criteria and the cut-off score of 260.
According to S1, Complainant was not interviewed because his score of 240 was below the cut-off score of 260. S1 gave three of the four African-American males who applied the same score (240). The record shows that S1 did not give Complainant credit for his electrician's license, which is a specialized license, did not give any points for his planning experience, did not give him a high score for craft experience, did not give credit to reflect his years of maintenance experience or credit for the two Associate's degrees that Complainant earned. S1 stated that he rated Complainant low on computer skills because Complainant's resume did not indicate Complainant's Maximo computer experience.
The record shows that one of the four Caucasians (C1) selected also had a matrix score below 260, which was the stated cut-off for interview. His name and score is reflected as 200 on a document referenced as Attachment 3. Applicants' Scores Below 260.3 One of the persons ultimately selected had a high school diploma and no Associate degrees. Two of the four had been trained by Complainant and did not have Complainant's years of experience.
S2 acknowledged that she was involved in this selection process and was a participant in the settlement for Complainant's first complaint that was filed some months prior to the application at issue. After S1 scored the matrix, the spreadsheet went to a Senior Manager/HR Consultant (S2) for review and approval.
The record shows that in this case, S2 advocated for the interview of the two African-American females who applied. Their assigned scores were 280. While interviewed, the African-American women were not selected. The record shows that both of the black females had less specialized experience and less electrical hands-on experience than Complainant, who was not interviewed. 4 In addition, a Native American male's score was recorded as 280, but he was not offered an interview.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation. Thereafter, Complainant requested that the Agency issue a decision.
The Agency stated that it did not interview or select Complainant because he was not deemed as qualified as the persons selected. The Agency's articulated reason for not interviewing Complainant was that S1 determined that Complainant was not one of the most qualified candidates for the position, based on S1's matrix results. The Agency reasoned that race could not be a factor because it offered interviews to two Black females and had also rejected some Caucasian males.
With regard to the reprisal claim, the Agency concluded that there was no nexus to Complainant's prior activity. The Agency found that, assuming Complainant established a prima facie case, the Agency stated legitimate reasons for its actions (not interviewed because of his lower matrix score), and Complainant had not shown that the reasons were pretext for discrimination or reprisal.
The instant appeal from Complainant followed. In brief, on appeal, Complainant states that he was unlawfully denied the opportunity to interview and be selected for the subject Planner position and that the Agency erred in finding no discrimination or reprisal because the Agency used subjective criteria to inflate the scores of whites and other individuals not within his protected group (African-American males), while discounting his qualifications.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission, 29 C.F.R. � 1614.405(a).
In this case, Complainant attempts to set out a pattern of retaliatory and sex and race-based non-referrals and non-selections. Complainant claims that the Agency held him to a subjective, higher, more rigid standard as an act of retaliation and subjected him to subjective barriers because of his race and sex (African American male), which the Agency did not impose on White males or Black females.
To prevail in a disparate treatment claim, a complainant must generally demonstrate 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 US. 567, 576 (1978). Proof of the prima facie case will vary depending on the facts. The burden then shifts to the Agency to articulate legitimate, nondiscriminatory reasons for its actions. Texas Department of Community Affairs v. Burdine, 450 US 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(2000).
To establish a prima facie case of race/sex discrimination in the case of a non-referral or non-selection, Complainant must show that he is a member of a protected class; he was qualified, he was not selected and he was accorded less favorable treatment than that given to persons otherwise similarly situated who were not of Complainant's race or protected class. In this case, Complainant is an African-American male. The record shows that he was qualified, but his name was not referred for an interview; and others (not of his race or protected class) with lesser qualifications were interviewed and/or selected.
Complainant can similarly establish a prima facie case of reprisal by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Administration, EEOC Request No. 05960403 (Dec. 6, 1996). Pretext may be shown by showing that the employer's proffered reason is unworthy of credence. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Rejection of the employer's proffered reason permits the trier of fact to "infer the ultimate fact of intentional discrimination." St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511(1993).
In this case, Complainant engaged in protected activity when he filed a prior EEO complaint. One of the Agency's officials involved in the selection process (S2) was a participant in the first EEOC complaint; had been recently deposed in the first action, less than a month before Complainant's application on this matter.
S1 also acknowledged that he was aware of Complainant's prior EEO activity. It is unclear when he learned of the EEO activity. Nevertheless, the record shows that he had access to the personnel records and S1 replaced the official who had been named in Complainant's first complaint. The record shows that none of the four individuals selected had prior EEO activity. We find, therefore, that there is a sufficient nexus between the EEO activity and the decision not to select Complainant to raise an inference of retaliatory animus.
The burden of production now shifts to the Agency to rebut the presumption by articulating a legitimate, non-discriminatory reason for the non-referral and non-selection. While the Agency's burden of production is not onerous, it must nevertheless provide a specific, clear, and individualized explanation for the treatment accorded Complainant.
The Agency maintains that it made the selection decisions based on an objective standard, when it used S1's matrix to rank the candidates. It further asserted that Complainant was not rated high enough to be offered an interview.
However, Complainant has proven, by a preponderance of the evidence, that the Agency's articulated reasons were a pretext for discrimination and/or unlawful retaliation. The record shows that S1 only credited Complainant with five to ten years experience, when he had 19 years. S1 also did not credit Complainant for his two associate degrees, as well as his specialized license. The Agency selected individuals with less education, less experience and years of service who were not Black males and who had no prior EEO activity. Although education was touted as necessary, one selectee had a high school diploma and Complainant had two associate degrees and an electrician's license. The record shows that the Agency extended an interview to individuals with no craft experience but credited them with more experience than was warranted by their resumes, based on the subjective criteria, while denying that same opportunity to Complainant and other non-White males.
The responses provided by management officials do not explain why they deviated from applying the Agency's standard Planner Candidate Assessment Instrument or why Complainant was rated in a way that failed to fully credit him with his actual years of service, education and specialized licenses. The Agency did not articulate why it imposed its requirements selectively, rather than uniformly. The matrix was based on subjective criteria that adversely denied Complainant an equal and fair opportunity to compete, based on his actual qualifications.
Although the application of subjective criteria in a selection process may be permissible, the Commission recognizes that the use of subjective criteria "may offer a convenient pretext for unlawful discrimination." Carter v. Social Security Administration, EEOC Appeal No. 0720080005 (Oct. 23, 2009). Complainant's qualifications were observably superior to those of the persons selected for interview or appointment. See Bauer v. Bailor, 647 F.2d. 1037, 1048 (10th Cir. 1981).
Further, the record shows that the Agency selected one individual (RT) whose assigned score appeared at times to be 200, which was below the 260 cut-off score. The Agency also did not interview other non-white males who scored above 260. The record also shows S2 advocated for the four Caucasian males and two Black females with lesser qualifications, who were interviewed.
Consequently, the record does not support the Agency's final decision or reasoning that that its actions were legitimate and non-discriminatory because they were objectively based on a premise that Complainant was less qualified than the persons interviewed or selected. The Agency's rationale for not selecting complainant was pretextual because the Agency's reasons were inconsistent with the objective evidence in the record and based on inconsistently applied subjective criteria. The record before us shows that the Agency's proffered reasons are not true or legitimate.
We find that the evidence establishes that the Agency discriminated against Complainant on the basis of his race/sex and in reprisal and that he is entitled to make-whole relief, including compensatory damages.
CONCLUSION
After a review of the record in its entirety, the Equal Employment Opportunity Commission REVERSES the Agency's final decision and REMANDS the matter to the Agency to take corrective action in accordance with this decision.
ORDER
The Agency is ORDERED to take the following remedial actions:
1. Within ninety (90) calendar days of the date this decision becomes final, provide Complainant with full relief, which shall include placement in either an Electrical Planner or Mechanical Planner position, or a substantially equivalent position, retroactive to the date of the selections at issue in this matter.
2. Provide Complainant with the back pay, interest, and other benefits due Complainant, pursuant to 29 CFR �1614.501. Payment to the Complainant should be on a make-whole basis for any loss of earnings he may have suffered as a result of the discrimination and retaliation. Back pay shall be awarded from the date Complainant would have been begun as a Planner if he had been selected for one of the positions at issue.
3. Within ninety (90) days of the date this decision becomes final, provide all other entitlements commensurate with the position of Planner, including any step and / or grade increases based on that time that would have been served in the position, absent the discrimination.
4. Within thirty (30) days of the date this decision becomes final, the Agency shall post the Posting Order, noted below.
5. Within ninety (90) days of the date this decision becomes final, conduct a supplemental investigation into Complainant's entitlement to compensatory damages and issue a decision on damages with appeal rights to this Commission, as well as payment to Complainant for the compensatory damages award.
6. Provide EEO training to S1 and S2, and consider taking disciplinary action against them to prevent recurrence of discrimination in the future.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation, including evidence that the corrective action has been implemented.
POSTING ORDER
The Agency is ordered to post at its Browns Ferry facility copies of the attached notice. Copies of the notice, after being signed by the agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty(60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period.
ATTORNEY'S FEES
If Complainant has been represented by an attorney (as defined by 29 C.F.R. �1614.501(e)(1(iii), he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency - - not to the Equal Employment Opportunity Commission, Office of Federal Operations - - within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. �1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 tends 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 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
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
June 6, 2012
__________________
Date
1 S1 replaced the individual named in Complainant's prior EEO complaint.
2 While the Agency apparently had a standard Planner Candidate Assessment Instrument, it was not used in this selection process.
3 The Agency's FAD, at footnote 5, notes his score as 280, but the record indicates his score appears as 280 on one page and 200 on another.
4 Complainant alleges that the Agency credited the females with craft experience, when they had none and when their resumes did not reflect any craft experience.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120121029
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121029