01A04466
08-27-2002
Jeffrey G. Conwell, Complainant, v. Glenn L. McCullough, Jr., Chairman, Tennessee Valley Authority, Agency.
Jeffrey G. Conwell v. Tennessee Valley Authority
01A04466
08-27-02
.
Jeffrey G. Conwell,
Complainant,
v.
Glenn L. McCullough, Jr.,
Chairman,
Tennessee Valley Authority,
Agency.
Appeal No. 01A04466
Agency No. 0616-97175
Hearing No. 250-98-8085X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission AFFIRMS the agency's final order.
The record reveals that complainant, a Lineman at the agency's
Transmissions Operation and Maintenance facility in Johnson City,
Tennessee, filed a formal EEO complaint on June 16, 1997, alleging
that the agency discriminated against him on the basis of his race
(African-American) when he was not reinstated following treatment
for drug use, after testing positive on a random drug test, while
Caucasian comparators were treated more favorably. At the conclusion
of the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
The AJ issued a decision without a hearing, finding no discrimination.
The AJ concluded that assuming, arguendo, that complainant established
a prima facie case of race discrimination, complainant failed to
demonstrate that the agency's articulated reason for not reinstating him
was pretexual. Specifically, complainant was not allowed to return to
work even though he had successfully completed an educational counseling
program because the agency's clinical psychologist found that after
evaluating complainant responses to psychological tests, his report of
long term marijuana use, cocaine use and alcohol use, complainant did not
have an attitude consistent with rehabilitation from poly substance abuse.
Further, she opposed complainant returning to work because complainant
worked with a line crew that depended on every member being able to
perform their duties safely. She noted that complainant was unable
to demonstrate his ability to work safely, especially in light of the
hazardous nature of complainant's job duties, which involved working
with energized circuits, working at high elevations, and operating
heavy equipment.
The AJ concluded that when viewing the evidence as a whole and in the
light most favorable to complainant, he failed to satisfy his burden of
establishing that he was subjected to intentional race discrimination.
The agency's final order implemented the AJ's decision. Complainant makes
no new contentions on appeal, and the agency requests that we affirm
its final order.
After a careful review of the record, the Commission finds that the grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. Construing the evidence in the light most favorable to
complainant, we find that complainant failed to present evidence that any
of the agency's actions were motivated by discriminatory animus toward
complainant's protected classes. Further, we note that the comparator
complainant identified successfully completed an intensive treatment
program, and due to his change in attitude, was allowed to return to
work. In contrast, complainant completed a twenty hour drug and alcohol
awareness counseling program, but failed to show similar rehabilitation.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
____08-27-02______________
Date