0120112903
10-12-2012
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. 0120112903
Hearing No. 490-2009-00076X
Agency No. 1020-2009006
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s March 14, 2011 final order concerning his equal
employment opportunity (EEO) complaint alleging employment discrimination
in violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. § 621 et seq. For the following reasons, the
Commission AFFIRMS the Agency’s final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an
applicant for employment at the Agency’s Watts Bar Nuclear Plant in
Spring City, Tennessee. On October 19, 2008, Complainant filed an EEO
complaint alleging that the Agency discriminated against him on the basis
of age (52) when he was not selected for an Electrician Level I Nuclear
Site (Fire Protection) position under Requisition Number 10000033328 at
Watts Bar Nuclear Plant for which he was interviewed on or about March
11, 2008.
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 EEOC Administrative Judge (AJ). Complainant
timely requested a hearing. The AJ held a hearing on August 6 and 7,
2009, and issued a decision on January 31, 2011.
In the decision, the AJ determined that the position at issue was
advertised both internally and externally under different vacancy
announcements and separate selection processes. The applicable union
agreement with the Agency required that internal candidates (current
Agency employees) be considered, and, if qualified, hired prior to
the hiring of any external candidates. An internal candidate was
selected on February 4, 2008, under the internal vacancy announcement.
Complainant and three other candidates applied as external candidates
under the external vacancy announcement at issue. Complainant met the
minimum qualifications for the position and was one of the two external
candidates interviewed for the position. Complainant was interviewed
by the selecting official (SO) and the Manager for Site Emergency
Preparedness (M1), but was ultimately not selected.
The AJ determined that Complainant had established a prima facie
case of age discrimination. Nonetheless, the AJ found that the
Agency had articulated legitimate, nondiscriminatory reasons for
its actions. Specifically, SO explained that while Complainant
and the selectee were viewed as equally qualified, what made the
difference was the selectee scored higher in the selection process
based on their respective interviews and resumes as to the position's
functions and accountabilities. The record revealed that the scoring
process initially involved rating the candidates’ resumes using a
“Position Selection Matrix” which listed two “position functions
and accountabilities” for which each candidate was scored. The two
functions and accountabilities were: (1) operating, testing, and adjusting
fire protection equipment; and (2) certification at the First Responder
level or higher.
The AJ found that the evidence of record established that Complainant did
not score as highly as the selectee with respect to the position’s first
function and accountability. SO testified that Complainant’s resume
did not reflect any extensive testing, operating, or adjusting of fire
protection equipment while the selectee’s resume did. Additionally,
as to the second function and accountability, Complainant’s resume
reflected that he had been firefighter in 1975 – 1977; however, there
was nothing in his resume to show that he was currently certified as
a First Responder. The selectee had a current EMT license; therefore,
Complainant did not score as highly as the selectee on this function and
accountability. SO testified that if he could hire an applicant that
was already certified as an EMT, he could save the Agency both time and
money as some of the training required for the position could be waived.
During the interview process, Complainant and the selectee were asked
seven identical questions related to the position. The AJ determined
that the record established that Complainant did not interview as
well as the selectee. The record established that the selectee gave
more specific answers while Complainant provided general responses.
Specifically, when the candidates were asked what challenges they might
face when working with a multi-skilled group, Complainant stated that he
had three years of experience working in the high voltage switchyard,
but did not provide information about the type of work he did there
or any specifics about challenges he faced. In contrast, the selectee
focused on how important it would be to understand other employees’
work since the job involved individuals from different crafts who must
work together. Similarly, when asked to describe their skills that
would benefit the fire operations group, Complainant stated that he
was familiar with the plant, but did not provide specific examples of
his skills or experiences. The selectee was specific in his response
and related his experience to fire protection by explaining how he was
journeyman electrician with experience installing fire protection systems.
As a result, the selectee also scored higher during the interview process
than Complainant. Thus, the AJ found that the Agency had articulated,
and credible evidence supported, that the Agency hired the candidate that
had the best overall score as derived from their resumes and interviews.
In attempting to establish that the Agency’s reasons were pretextual,
Complainant contended that he should have received additional points
based upon his years of experience as a journeyman electrician.
The Agency’s position was that it preferred a candidate who was a
journeyman electrician in conjunction with being certified at the First
Responder level or higher, who also had experience operating, testing,
and adjusting fire protection equipment. The AJ determined that the
selectee possessed all of these attributes while Complainant did not.
In addition, Complainant asserted that because the selectee ultimately
declined the job offer, he should have been given the position. The
Agency explained that by the time the selectee declined the job offer
the time limit had expired for when the Agency could offer the job to
someone else without having to obtain a waiver from the union, which
the union would be unlikely to provide. The AJ found that Complainant
had not established that the Agency’s explanations were pretextual.
Accordingly, the AJ held that Complainant had not been discriminated
against based on his age. The Agency subsequently issued a final order
adopting the AJ’s decision. Complainant submitted no arguments or
contentions in support of his appeal.
ANALYSIS AND FINDINGS
Standard of Review
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474,
477 (1951) (citation omitted). A finding regarding whether or not
discriminatory intent existed is a factual finding. See Pullman-Standard
Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law
are subject to a de novo standard of review, whether or not a hearing
was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), at 9-16 (Nov. 9, 1999).
In general, disparate treatment claims, such as the matter before us,
are examined under a tripartite analysis whereby Complainant must first
establish a prima facie case of discrimination by presenting facts that,
if unexplained, reasonably give rise to an inference of discrimination,
i.e., that a prohibited consideration was a factor in the adverse
employment action. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-804 (1973); Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978);
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000)
(applying the analytical framework described in McDonnell Douglas to an
ADEA disparate treatment claim). The burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions.
Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
If the Agency is successful, the burden reverts back to Complainant to
demonstrate by a preponderance of the evidence that the Agency's reasons
were a pretext for discrimination. Id. At all times, Complainant
retains the burden of persuasion, and it is his obligation to show by
a preponderance of the evidence that the Agency acted on the basis of a
prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993);
U.S. Postal Serv. Bd. Of Governors v. Aikens, 460 U.S. 711, 715-716
(1983).
Upon a review of the record, the Commission finds that the AJ's
finding of no discrimination is supported by substantial evidence.
The Commission concurs with the AJ’s finding that assuming arguendo
that Complainant established a prima facie case of age discrimination,
the Agency nonetheless articulated legitimate, nondiscriminatory reasons
for its actions, as set forth above. Specifically, SO testified credibly
that the selectee was chosen because he was rated higher than Complainant
based on their resumes and interviews. The selectee possessed the desired
background experience and performed better than Complainant during the
interview process.
Because the Agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory events, Complainant now bears the burden
of establishing that the Agency's stated reasons are merely a pretext for
discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403
(Dec. 6, 1996). Complainant can do this by showing that the Agency was
motivated by a discriminatory reason. Id. (citing St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502 (1993)). Complainant can also establish
pretext by showing that his qualifications are “plainly superior”
to those of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th
Cir. 1981).
In the present matter, the record does not support Complainant’s claim
that his qualifications were superior to the selectee’s. Here, the
weight of the evidence reveals that SO chose the selectee because he
scored higher throughout the selection process based on his resume and
his performance during his interview. Complainant’s qualifications are
not so plainly superior that they undermine the Agency’s explanation.
The Commission notes that an employer has discretion to choose among
equally qualified candidates, so long as the selection is not based on
unlawful criteria. In the absence of evidence of unlawful discrimination,
the Commission will not second guess the Agency's assessment of the
candidates' qualifications. Tx. Dept. of Cmty. Affairs v. Burdine,
At all times, the ultimate burden of persuasion remains with Complainant
to demonstrate by a preponderance of the evidence that the Agency’s
reasons were pretextual or motivated by intentional discrimination.
Complainant failed to carry this burden. Complainant has not shown
that the selection resulted from discriminatory animus or that the
reasons articulated by the Agency for its actions were mere pretext to
hide unlawful age discrimination. Accordingly, the Commission finds
that Complainant has failed to show that he was discriminated against
as alleged.
CONCLUSION
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 final Agency order because
the Administrative Judge’s ultimate finding, that unlawful employment
discrimination was not proven by a preponderance of the evidence, is
supported by the record.
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 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 9-18 (Nov. 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 (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
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 (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
October 12, 2012
Date
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0120112903
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112903