0120114049
03-14-2014
Complainant v. Bill Johnson, President and Chief Executive Officer, Tennessee Valley Authority, Agency.
Complainant
v.
Bill Johnson,
President and Chief Executive Officer,
Tennessee Valley Authority,
Agency.
Appeal No. 0120114049
Agency No. 2011025
DECISION
Complainant filed an appeal from the Agency's August 10, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the Agency properly found that Complainant failed to prove that he was subjected to unlawful discrimination and harassment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Staff Augmented Contract Laborer at the Agency's Colbert Fossil Plant in Alabama.
On January 10, 2011, Complainant filed an EEO complaint in which he alleged that the Agency discriminated against him on the bases of race (African-American), color (black), age (born in 1963), and in reprisal for prior protected EEO activity when:
1. On August 20, 2010, the Agency excluded Complainant from a meeting with management that his White co-workers attended;
2. On September 9, 2010, an offensive statement was made to Complainant about terminating him and his co-worker;
3. On September 21, 2010, the Agency did not transfer Complainant to the day shift;
4. On October 15, 2010, the Agency moved Complainant to the day shift;
5. On October 15, 2010, the Agency moved Complainant from the coal yard to the power plant;
6. On December 17, 2010, the Agency laid Complainant off his assignment at Colbert Fossil Plant.
7. On June 28, 2010, the Agency denied Complainant overtime work;
8. On August 2, 2010, Complainant learned that he was not hired as a Laborer at the coal yard at Colbert Fossil Plant; and
9. On August 3, 2010, Complainant was accused of non-performance on an Agency assignment;
On January 19, 2011, the Agency notified Complainant of its acceptance of claims identified here as 1 through 6 for investigation. The Agency also informed Complainant of its dismissal of claims identified here as 7 through 9 for untimely EEO Counselor contact and its dismissal of his claim that the aforementioned actions were partially motivated in reprisal of his union activity on the basis that it failed to state a claim.1
In an investigative statement, Complainant stated that on August 20, 2010, he observed that management invited four White laborers to a meeting that Complainant was not invited to attend. Complainant stated that the Yard Operations Supervisor (YOS) called the meeting, but he did not know what was discussed at the meeting. Complainant further stated that the YOS stopped him and a co-worker (C1) in the hallway and told them that he could have their jobs. Complainant stated that he and C1 had come to work, but because welding was being performed over their heads, they had safety concerns about performing the work at that site. Complainant stated that another co-worker (C2) was also assigned to do the job with him and C1. Complainant stated that the YOS told them that he had already called the Labor Foreman to see if Complainant and C1 could be replaced.
Complainant also stated that he requested a transfer to the coal yard on the day shift, but the Agency denied his request around September 21, 2010. Complainant stated that in October 2010, the YOS directed him to report to the day shift in the plant, but Complainant was not satisfied with this assignment because it was in the plant instead of the coal yard. Complainant stated he wanted to stay in the coal yard because "that's what I know, that's all I know." Report of Investigation (ROI), Exhibit 1, p. 12. Complainant stated that the YOS told him that the Agency did not need workers on the day shift in the coal yard, although they moved two other employees to the day shift in the power plant after Complainant was moved. Complainant stated that one of the employees moved to the day shift in the plant was the son of the Maintenance Supervisor.
Complainant further stated that on December 17, 2010, management informed him and a White co-worker who worked in the plant with him that they were laid off because of a reduction-in-force. Complainant stated that four laborers who worked in the coal yard were retained in their positions after he was laid off. Complainant stated that although annual laborers were retained in the plant after he was laid off, there were no contract laborers left in the plant. Complainant stated that he was "the only Black employee laborer out there, on the coal yard." Exhibit 1, p. 16.
The YOS stated that he was Complainant's supervisor, and he had knowledge of the meeting that Complainant claimed he was excluded from attending. The YOS stated that he reviewed his daily journal, and he had no meeting on August 20, 2010. Regarding claim 2, the YOS stated that on September 9, 2010, Complainant was assigned a job at the Number 2 crane cell and instructed that his job should not get in the way of the other job that was being performed in the area. The YOS further stated that Complainant and his co-workers were told that if there was any steel flying overhead, they could move of the way for that period of time, and then resume their work. He stated that he instructed Complainant and his co-workers to let him know if they ran into any barriers, and about three hours into their assignment, he went to check on them to see how everything was going. The YOS stated that when he arrived, he asked Complainant and his co-workers what was holding them up, and they responded, "Well, we can't get around over there to do the work because they're bottles in the way." Exhibit 2, p. 5. The YOS stated that he told Complainant and his co-workers that there were two means of accessing the work area and showed them another way to access their work area. The YOS stated that there was no work going on that would have posed a safety hazard. The YOS stated that during lunch, C1 stated that he and Complainant could not gain access to the area where they needed to do the work. The YOS stated that he told Complainant and his co-workers, "Look, guys, if y'all don't want to work, I'll find somebody that can do the work." Exhibit 2, p. 6.
Regarding claim 3, the YOS stated that the six laborer crew was split into two shifts, one day shift and one evening shift, because the facility only had one backing truck. He stated that because a lot of pumps were not working, management decided to move Complainant to one shift and the other two laborers to another shift to ensure deckhand coverage on both shifts. The YOS stated that Complainant was also moved to the day shift partly because he brought a doctor's note that stated that working the night shift gave him high blood pressure.
Regarding claims 4 and 5, the YOS stated that contractors are brought in for coal dust mitigation, never promised a set schedule, and must work the yard and the powerhouse/plant. The YOS stated that there was a need to have laborers on two different shifts, and management decided that the contract laborer crew would work under a labor foreman. The YOS stated that management placed Complainant on the day shift in the plant, and two plant annual laborers were removed to the yard to replace Complainant. The YOS stated that Complainant is a contract laborer and can be assigned anywhere in the plant because there is no agreement that states that contract laborers must be used based on seniority or experience. The YOS stated that the two employees that Complainant swapped with are African American annual laborers. The YOS stated that he was not involved in the decision to lay off Complainant.
The Maintenance Supervisor stated that he supervised Complainant's supervisor. The Maintenance Supervisor stated that Complainant asked him about transferring to the day shift, and the Maintenance Supervisor responded that there was nothing available. The Maintenance Supervisor further stated that Complainant and the annual job steward later came to him with a "doctor's excuse" that stated that Complainant needed to work the day shift because of his blood pressure. Exhibit 3, p. 6. He stated that he was able to move Complainant from the night shift to day shift with the plant laborer crew, but "they are all the same." Id. The Maintenance Supervisor stated that all employees do the same journeyman laborer work, and no one was hired with any type of expertise.
The Maintenance Supervisor stated that no work was available for Complainant in the coal yard on the day shift, and there was work in the plant that "required a little more." Id. The Maintenance Supervisor also stated that he had nothing to do with his son's transfer to the coal yard, and the only reason Complainant was moved from the coal yard to the plant was because he brought a doctor's note that stated that Complainant needed to work day shift because of his blood pressure. The Maintenance Supervisor further stated that he did not know about the lay-off until his manager told him that they needed to cut back on employees because of the budget. He stated that Complainant was laid off because the plant "budget ran over." Exhibit 3, p. 12.
The Outage and Work Control Manager stated that he gave the order that laid off the laborer crew. He stated that he told the Maintenance Supervisor that the facility was out of money and to lay off the laborer crew without identifying any specific employees. He further stated that Complainant's experience was not a factor in the lay-off.
C1 stated that he worked with Complainant in the coal yard as a contract laborer. C1 stated that he did not recall any meetings with supervisors that excluded Complainant. C1 stated that in September 2010, he worked with Complainant and C2 on Crane Number 2. C1 stated that people were working over their worksite, and they took a break because of welding activity. He stated that the YOS stopped them, asked them why they were not working, and said that he could fire them. C1 stated that he was a 34-year old Caucasian male who had no previous EEO activity.
C2 stated that he worked with Complainant as a contract laborer in the coal yard. C2 stated that he did not recall any meeting with supervisors that excluded Complainant. C2 further stated that when they went to an assignment in September 2010, there were people working above them welding aluminum. C2 stated that he and Complainant left the site and went to lunch, and the YOS told them that he could replace them "just like that" because they were "nothing but hourly." Exhibit 9, p. 6. C5 stated that he thought it would have been unsafe to work at that site. C2 stated that he was a 42-year old Caucasian male who had no previous EEO activity.
A co-worker (C3) stated that he worked with Complainant as a laborer in the coal yard and did not recall Complainant not being at any meetings with supervisors in August 2010. The Maintenance Supervisor's son (C4) stated that he never worked with Complainant but worked as a contract laborer since October 2010. C4 stated that he was assigned to work in the coal yard and was moved from the night shift to the day shift probably around late December 2010.
Another co-worker (C5) stated that he worked with Complainant as a contract laborer in the coal yard and did not recall having any meetings with co-workers that excluded Complainant. C5 stated that he was a 23-year old Caucasian male who had no previous EEO activity.
At the conclusion of the investigation of the accepted claims, 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
In a one-paragraph appellate statement, Complainant maintains that C1 and C2 were hired after he was hired. Complainant also maintains that C1, C2, and C3 do not have the level of training that Complainant has, and the Maintenance Supervisor's son replaced him in the plant. The Agency requests that we affirm its final decision.
STANDARD OF REVIEW
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). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, � VI.A. (Nov. 9, 1999) (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").
ANALYSIS AND FINDINGS
Disparate Treatment and Hostile Work Environment
Complainant's complaint can be analyzed under both disparate treatment and hostile work environment analyses. In order to prevail in a disparate treatment claim, 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 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 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't 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, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
In order to establish a claim of hostile environment harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an environment, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
For purposes of analysis, and without so finding, we assume that Complainant established a prima facie case of discrimination. Nevertheless, we find that the Agency provided legitimate, non-discriminatory reasons for its actions. Specifically, management stated that Complainant was not excluded from any meetings that his co-workers attended. Regarding claim 2, the YOS told Complainant and co-workers that he would find someone else to do an assignment if they did not want to complete it because there were no safety hazards that justified their refusal to complete a task. Regarding claims 3, 4, and 5, the Maintenance Supervisor stated that Complainant asked him about transferring to the day shift, but there was nothing available. The Maintenance Supervisor further stated that Complainant and the annual job steward later came to him with a "doctor's excuse" that stated that Complainant needed to work the day shift because of his blood pressure, and he was able to move Complainant from the night shift to day shift with the plant laborer crew. The YOS stated that Complainant is a contract laborer and can be assigned anywhere in the plant because there is no agreement that states that contract laborers must be used based on seniority or experience. Regarding claim 5, the Maintenance Supervisor stated that Complainant and a co-worker were laid off because the plant "budget ran over."
Complainant maintains that he was excluded from a meeting that his co-workers attended with management. However, the co-workers could not recall any occasions wherein Complainant was excluded from a meeting, and after reviewing his daily work journal, the YOS denied that Complainant was excluded from any meeting that co-workers attended. With respect to YOS's comments about terminating Complainant, witness statements attest that the YOS's comments were made in the context of a disagreement between the YOS and Complainant about performing an assignment. Moreover, the comments were not only made to Complainant, but also to his White younger co-workers who also had not completed the assignment. We find no evidence that the YOS' comments were motivated by Complainant's race, color, age, or EEO activity.
Regarding Complainant's assignment to the day shift at the plant, it is undisputed that Complainant submitted documentation from his doctor that indicated that Complainant could no longer work at night because of his health condition, and the Agency did not move Complainant to the day shift until Complainant submitted this documentation. Further, it is undisputed that contract laborers were expected to be able to work in the plant as well as the coal yard, and experience, expertise, or seniority were not factors in their assignments. Regarding claim 5, Complainant acknowledges that he was laid off along with a White laborer who also worked in plant. We find that this bolsters the Agency's assertion that Complainant discharge was not based on his race or color, but based on budget issues at the plant. As such, we find that Complainant failed to prove that the Agency's legitimate, non-discriminatory explanations for its actions were pretext for unlawful discrimination.
Likewise, under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of a hostile work environment must also fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency as set forth above were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Consequently, we find that the Agency properly found that Complainant failed to prove that he was subjected to unlawful harassment or discrimination.
CONCLUSION
Therefore, based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency's final decision for the reasons set forth in this decision.
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 (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 (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
March 14, 2014
Date
1 Complainant does not challenge the Agency's procedural dismissals on appeal. We note that the Commission herein exercises its appellate discretion to only review the matters raised by Complainant on appeal. Equal Employment Opportunity Commission Management Directive for 29 C.F.R. � 1614 (EEO MD-110), at 9-10 (Nov.9, 1999).
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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