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

Equal Employment Opportunity Commission

May 22, 2014

0120121949 (E.E.O.C. May. 22, 2014)

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

,
Complainant,

v.

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

Appeal No. 0120121949

Agency No. 2011065

DECISION
On March 22, 2012, Complainant filed an appeal from the Agency’s February 17, 2012, 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. 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 Coal Yard
Maintenance Temporary Foreman at the Agency’s Widows Creek Fossil Plant located in
Stevenson, Alabama.

On August 3, 2011, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the basis of race (African-American) when:

1. Complainant was given an Expectation and Clarifications document on February 8,
2011.
2. Complainant received a Documented Oral Warning (DOW) on April 15, 2011.
3. Complainant learned on June 14, 2011, that he was not selected for the position of
Outage Supervisor on Vacant Position Announcement (VPA) No. 29331.
4. The Agency’s hiring, promotion and demotion policies and practices had a disparate
impact on African-Americans and those policies and practices specifically impacted
Complainant when he was issued a DOW on April 15, 2011.
5. The Agency’s hiring, promotion and demotion policies and practices had a disparate
impact on African-Americans and those policies and practices specifically impacted
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Complainant when he learned on June 14, 2011, that he was not selected for VPA
No. 29331.

On August 12, 2011, the Agency issued a Notice of Partial Acceptance and Partial Dismissal
of Discrimination Complaint. Specifically, the Agency accepted issues (2) – (5) for further
processing. The Agency dismissed issue (1), pursuant to 29 C.F.R. § 1614.107(a)(2), for
untimely EEO Counselor contact.

At the conclusion of the investigation on the accepted issues, 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). In accordance with Complainant’s
request, 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.

On appeal, Complainant states that he is appealing all four issues in his case.

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). See Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614

, at Chapter 9, § VI.A. (November 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”).
At the outset, we note that Complainant does not challenge the Agency's dismissal of issue (1).
The Commission has the discretion to review only those issues specifically raised in an appeal.
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, 9-10
(November 9, 1999). Accordingly, we will not address the dismissal of issue (1) in this
decision. Moreover, we note Complainant does not challenge the Agency’s definition of the
issues in his complaint.

We note that Complainant’s complaint presents two distinct types of allegations of violations of
the Title VII - that the Agency subjected him to disparate treatment on the basis of his race and
that the Agency’s policies and practices had a disparate impact on African-Americans. We
will address each type of allegation in turn below.

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Disparate treatment
Generally, claims of disparate treatment are examined under the tripartite analysis first
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v.
Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he 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, 411 U.S. at 802; Fumco Constr. Corp. v. Waters

,
438 U.S. 567, 576 (1978).
Once a complainant has established a prima facie case, the burden of production then shifts to
the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of
Com. 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 reason(s) for its action was a pretext for discrimination. 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 Center
v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens

, 460 U.S.
711, 715-16 (1983).
In the present case, the Agency articulated legitimate, nondiscriminatory reason for its actions.
Specifically, the record reveals that Complainant received a document entitled Expectations
and Clarifications from his supervisor (Person A) on February 8, 2011. The Expectations and
Clarifications addressed working overtime, requests for clearances, morning pre-job
briefings/stretching/safety message, work order closures, and leaving the worksite. Person A
stated that 60 days after issuing the Expectations and Clarifications he did not see an
improvement in Complainant’s performance and went to Human Resources seeking advice on
how to handle the situation. On April 15, 2011, the Agency issued Complainant the DOW for
failure to meet performance expectations. The DOW noted Complainant had been coached
multiple times by Person A regarding work performance and job expectations, such as
establishing clearances in a more timely fashion, communicating delayed work to his
supervisor, and communicating crew absences and training to Person A. The original DOW
also noted that on April 8, 2011, Complainant had effectively stopped the work of his crew for
30 – 45 minutes and facilitated an impromptu job stewards meeting. A subsequent copy of the
DOW stated that Complainant did not effectively direct his crew to complete the work in the
assigned timeframe and that he facilitated an impromptu job stewards meeting

In response, Complainant noted that his performance prior to the issuance of the Expectations
and Clarifications was “fully adequate.” Complainant alleged that Person A issued the DOW
so that Complainant would not be selected for the Outage Supervisor’s position. Complainant
also claimed that he asked Person A about his progress on several occasions, and Person A
indicated that Complainant’s work was satisfactory. Complainant stated that he complied with
each of the Expectations and Clarifications issued to him. With regard to the requirement that
0120121949

4
pre-job briefings be executed within 30 minutes, Complainant stated this could not be
accomplished within the expected time frame. Complainant claimed that Person A should have
approached him directly to point out any deficiencies in his performance rather than issuing
him the warning. Complainant also stated that the warning was inaccurate because he did not
actually cause a work stoppage. In addition, Complainant compared himself to Employee 1
who did not receive a DOW.

The record reveals that for the period of September 22, 2009, through December 31, 2010,
Person A rated Complainant’s job performance as “Fully Adequate” on a scale ranging from
Unacceptable Performance, Marginal Performance - Improvement Needed, Fully Adequate
Performance, to Better Than Fully Adequate Performance. Person A stated that he took over
as Complainant’s supervisor in August 2010. Person A maintained that Complainant’s
performance deteriorated from the time he completed the performance review and the time he
issued the documented oral warning.

With regard to Complainant’s contention that the DOW was inaccurate because it falsely
indicated that Complainant caused a work stoppage, the record reveals that the original DOW
noted that on April 8, 2011, Complainant had effectively stopped the work of his crew for 30 –
45 minutes. Person A explained that after several people stated that Complainant did not cause
a work stoppage on April 8, 2011, the language regarding the work stoppage was removed
from the DOW issued to Complainant.

Person A refuted Complainant’s claim that he was fulfilling the Expectations and Clarifications
issued to him in February 2011. Person A also stated he did not remember Complainant
asking one time how he was doing based on the Expectations and Clarifications issued by
Person A. With regard to Complainant’s contention that pre-job briefings could not be done
within 30 minutes, Person A stated that he was a crew foreman for one and a half years and
stated he accomplished this task within that time frame. Despite Complainant’s claim to the
contrary, there is no indication that Person A was required to approach Complainant directly to
notify him of any deficiencies prior to issuing a DOW. In addition, Person A noted that he
was Employee 1’s supervisor on a temporary basis during that time. Person A stated that he
did not observe problems with Employee 1’s work the way he did with Complainant’s work.
Finally, we note there is no evidence that Person A issued the DOW so that Complainant
would not be selected for the Outage Supervisor’s position, Upon review, we find
Complainant failed to show that the Agency’s actions were a pretext for discrimination.

The record reveals that Complainant applied for a vacant Outage Supervisor position advertised
internally at the Agency under Vacant Position Announcement No. 29331. Among other
items, the position required a Bachelor’s of Science Degree in a technical field or equivalent
related education, training, and experience; a minimum of five years experience in power plant
maintenance and/or operations, with a preference of two years experience in a supervisory
capacity or demonstrate team/project lead experience. Five applicants, including Complainant,
were considered for the position and evaluated based on a records review and their interview
performance. The records review comprised 40 percent of the candidate’s overall score, and
0120121949

5
the interview comprised 60 percent of the overall score. Person B, Outage Work Control
Manager, was the responsible hiring manager for the position. For the records review, Person
B reviewed the candidates’ resumes and training transcripts and awarded points based on four
established criteria: (1) Maintenance/Operations power plant experience or supervisory
experience; (2) Outage experience as a craftsman, supervisor, or Outage Control Center
(OCC) positions; (3) Education/Training; and (4) Computer Skills.

Each of the five candidates received interviews. Person B conducted the interviews along with
Person C, Work Week Management Supervisor at Widows Creek Fossil Plant. Each candidate
was asked the same ten questions, with each question worth ten percent of the candidate’s
overall score. The questions were formulated based on the work a typical outage supervisor
would need to know to carry out his duties in the position. Each candidate’s score for all
phases of the selection process was entered into a selection matrix based on the assigned
weights.

The Agency stated Complainant was not selected for the Outage Supervisor position because he
was not the most qualified candidate for the job. The record reveals that Complainant received
a total of 270 points for the records review, which was the third highest score. The Selectee
received 410 points for the records review. Complainant scored the lowest on the interview
score among all the candidates with 165 total points. The Selectee received the highest
interview score with 390 points. Complainant received an overall score of 2070 points and the
Selectee received an overall score of 3980 points.

With regard to the interviews, both Person B and Person C stated that the Selectee answered
the questions better than Complainant. Person B explained that for the first interview question,
asking why the candidates wanted to be an Outage Supervisor, Complainant received a low
score because he was not specific enough about why he wanted the job. Person C stated that
Complainant’s and Selectee’s “motivation and drive” and “familiarity with the process”
accounted for the difference in their scores. Person B stated that the Selectee mentioned his
experience and the fact that he wanted to make a difference in how he affected the Agency’s
business whereas Complainant only mentioned his work experience. For the second interview
question, asking what knowledge, skills, characteristics, and experience the candidates possess
that would help them be successful as an Outage Supervisor, Person C explained that the
Selectee expressed more familiarity with the plant systems and procedures. In contrast, Person
C stated that Complainant’s response to the question suggested that his experience and ability
to prioritize was limited. With regard to the sixth question, regarding the Forced Outage
Maintenance Outage (FOMO) procedure, Person C stated that Complainant received a lower
score on that question because he indicated that he was not familiar with the procedure,
whereas the Selectee was able to provide details about the process. Person B noted that with
regard to the ninth question, which asked candidates to explain the OCC and its function,
Complainant’s response showed he did not know the answer. In contrast, Person B noted that
the Selectee thoroughly answered the question and covered forced maintenance outages,
planned outages, what responsible parties from each department were supposed to be there and
0120121949

6
how often they were supposed to be there, when updates are supposed to go out, and when
meetings are supposed to take place.

In response, Complainant stated that he was better qualified than the Selectee because he had a
Bachelor’s of Science degree while the Selectee did not. Complainant also asserted that the
Selectee was chosen for the job because of his familiar relationship to other Agency employees
and because he was placed in a Temporary Outage Supervisor position prior to the selection.

With regard to education, we note the Vacant Position Announcement for the Outage
Supervisor position required a Bachelor’s of Science Degree in a technical field or equivalent
related education, training, and experience. In addition, Person B noted that Complainant was
given credit for his education, and the record reveals that Complainant received more points
for education than the Selectee during the rating process. However, education was not the
only criteria for which the candidates were evaluated.

We note there is no evidence in the record to support Complainant’s assertion that his selection
was due to his familial relationship. Additionally, we find there is no evidence that
Complainant was preselected for the position at issue. Moreover, we note that pre-selection
itself does not constitute prohibited discrimination. Further, we find Complainant failed to
show that his qualifications for the position were plainly superior to the qualifications of the
Selectee. Upon review, we find that Complainant failed to show by a preponderance of
evidence that the Agency’s actions were a pretext for discrimination.

Disparate Impact
To establish a prima facie case of disparate impact, Complainant must show that an agency
practice or policy, while neutral on its face, disproportionately impacted members of the
protected class. This is demonstrated through the presentation of statistical evidence that
establishes a statistical disparity that is linked to the challenged practice or policy. Watson v.
Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988) (Complainant must present “statistical
evidence of a kind and degree sufficient to show that the practice in question has caused the
exclusion”). Specifically, Complainant must: (1) identify the specific practice or practices
challenged; (2) show statistical disparities; and (3) show that the disparity is linked to the
challenged practice or policy. Id.; Obas v. Dep't of Justice, EEOC Appeal No. 01A04389
(May 16, 2002). The burden is on Complainant to show that “the facially neutral standard in
question affects those individuals [within the protected group] in a significantly discriminatory
pattern.” Dothard v. Rawlinson

, 433 U.S. 321, 329 (1977).
Complainant claims that the Agency’s hiring, promotion and demotion policies and practices
had a disparate impact on African-Americans and those policies and practices specifically
impacted Complainant when he was issued a DOW on April 15, 2011. In addition, he alleges
that the Agency’s hiring, promotion and demotion policies and practices had a disparate impact
on African-Americans and those policies and practices specifically impacted Complainant when
he learned on June 14, 2011, that he was not selected for VPA No. 29331.
0120121949

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In the present case, Complainant has failed to make out a prima facie case of disparate impact.
He challenged no specific Agency practice or policy, nor did he provide evidence of a
statistically significant disparity that could be attributed to such practice or policy.

CONCLUSION
Accordingly, the Agency’s final decision is AFFIRMED.

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.
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8
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

Date
May 22, 2014