Donette A.,1 Complainant,v.Bill Johnson, President and Chief Executive Officer, Tennessee Valley Authority, Agency.

Equal Employment Opportunity Commission

Apr 26, 2019

2019001834 (E.E.O.C. Apr. 26, 2019)

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

Donette A.,1
Complainant,

v.

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

Appeal No. 2019001834

Hearing No. 420-2014-00255X

Agency No. TVA20130080

DECISION

On November 9, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
September 13, 2018 final order concerning an equal employment opportunity (EEO) complaint
claiming 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.

BACKGROUND

During the period at issue, Complainant worked as a Maintenance Specialist Nuclear at the
Agency’s Browns Ferry Nuclear Plant in Athens, Alabama.

On September 17, 2013, Complainant filed a formal complaint. Complainant claimed that the
Agency discriminated against her based on race (African-American), sex (female), and in
reprisal for prior protected activity when:

1. on or about May 21, 2013, Complainant was not selected to the position of
Outage Planning Supervisor, Work Control, Browns Ferry Nuclear Plant, under
Vacant Position Announcement ("VPA'') No. 32175;

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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2. on or about June 19, 2013, Complainant was assigned a collateral role as the
Department Training Coordinator;

3. Complainant was subjected to a hostile work environment when on:

a. on or about July 17, 2008, the Supervisor changed her work order and
the information she noted was incorrect;

b. on December 7, 2010, the Supervisor spoke in an offensive manner
and acted unprofessionally (hooting, hollering, and throwing paper
around) by requesting her go to the T-Week meeting when the
Supervisor was assigned to do so;

c. on January 30, 2013, the Supervisor did not inform her of the new
template in order to complete a CRDM work order;

d. on February 12, 2013, the Supervisor made a false accusation
pertaining to the assignment of work order 112082657; and,

e. beginning January 22, 2013 and continuing through May 20, 2013, the
Supervisor did not grant an Independent Qualified Review of her
packages, as she did her peers.

On November 12, 2013, Complainant amended the formal complaint to add the additional claim,
based on race:

4. on or about November 5, 2013, Complainant was not selected to the position of
C-Level Maintenance Specialist under VPA No. 32720.

The Agency accepted the claim for investigation. While the investigative record contains
information regarding all four claims, we will only discuss claims 1 and 4, as claims 2 and 3
were retracted by Complainant prior to her January 2016 hearing.

The investigative record reflects the following pertinent matters relating to claims 1 and 4.

Claim 1

The Supervisor (Caucasian, male) helped the Selecting Manager (Caucasian, male) develop
criteria for the records review, create a uniform scripted interview questionnaire, and a template
of preferred responses to the interview questions. The records review resulted in the selectee
(Caucasian, female) (hereinafter referred to as “Selectee1”), and other applicants, to score higher
than Complainant.

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For example, the Selecting Manager stated that during the records review, Selectee1 was
awarded 5 points on Specialized Experience in the matrix for training experience. Complainant’s
resume, in comparison, listed limited training experience. The Selecting Manager stated that
Complainant and the Selectee1 both performed well in the interviews, and that “there was not
very much difference in the interview itself, between the two candidates.” Ultimately, it was
Selectee1’s specialized training experience that was a separating factor between her and
Complainant.

Complainant argued that Selectee1 was clearly unqualified for the position. Complainant argued
that Selectee1 was known to behave inappropriately at work. For example, Complainant asserted
that Selectee1 would use profanity, throw tantrums, slam phones down, was highly emotional,
insubordinate, bullied others, and had constant personal conflicts with others. Complainant also
argued that Selectee1 never completed “root cause” analysis, and that this was a minimum
qualification for the position. Complainant argued that not even making the minimum
qualification should have barred Selectee1’s selection. In contrast, Complainant asserted that she
had completed root cause” analysis.

The Agency stated that when a vacancy indicates minimum qualification involving an ability,
recruiting staff are trained to search for experiences on the resume that indicate the ability to do
those tasks. The Agency stated that Selectee1 did not complete root cause analysis, but had six
references to troubleshooting, which closely related to root cause analysis. Paired with other
items on her resume, and her interview, the Agency felt Selectee1 was better suited for the role.

Claim 4

The Agency stated that any candidate with an associate’s degree in a technical field was
considered highly desirable. Based on the interview matrix, the eventual selectee (Caucasian)
(hereinafter referred to as “Selectee2”) was awarded four points due to his associate’s degree in
electronics. In contrast, Complainant only had non-technical college courses, and was only given
two points in the same category. Complainant was ranked fourth in the list of candidates.

Complainant performed well in the interview. However, the Selecting Manager noted that
Selectee2 did provide better detailed responses to several of the interview questions. The
Selecting Manager noted that Selectee2 scored twenty-nine points for the interview, compared to
Complainant’s twenty-seven points. The Agency also noted that even if the interview scores
were the same, Selectee2 still had the lead regarding the records review score.

Complainant argued that the Agency should have granted her completion of the two-year Navy
Electronic School as the equivalent of an associate degree for her. The Agency argued that there
was no Agency agreement or guideline that required the Agency to apply degree equivalency to
the calculation of scores for a C-Level position. Moreover, the Agency stated that an actual
degree, not degree equivalency, was desired for the position. Complainant believed she was
superior, and strongly disagreed with Selectee2’s selection.

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On July 14, 2014, at the conclusion of the investigation, the Agency provided Complainant with
a copy of the report of investigation and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a
hearing.

On February 24, 2015, the AJ originally issued a decision in favor of the Agency by summary
judgment. However, on March 2, 2015, the AJ reconsidered, vacated the summary judgment
decision and decided to hold a hearing.

Prior to the hearing being held, Complainant, through counsel, dropped claims 2 and 3. The
hearing was held on January 27, and 28, 2016. The only claims addressed at the hearing were
claims 1 and 4. On August 10, 2018, the AJ issued a decision concluding no discrimination or
unlawful retaliation had been proven. On September 13, 2018, the Agency issued a final order
adopting the AJ’s finding of no discrimination regarding claims 1 and 4.

The instant appeal followed. On appeal, Complainant argues that the AJ failed to consider
testimony elicited at the hearing. Complainant states that the hearing had occurred over two and
half years prior to the issuance of the decision, and it appeared that information from the hearing
had been given no credibility, and/or was minimized at the time of the decision. Complainant
asserts that she had established a prima facie case, and ample evidence of pretext. Complainant
argues that she had clearly demonstrated that her qualifications were plainly superior to that of
the selectees.

ANALYSIS AND FINDINGS

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. National Labor Relations Board, 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 de
novo standard of review, whether or not a hearing was held.

Where an AJ holds a hearing, as in this matter, the question before us is whether there is
substantial evidence in the record to support the AJ's findings. 29 C.F.R. § 1614.405(a). We find
that the findings of fact are supported by substantial evidence in the record, and the AJ correctly
applied the appropriate regulations, policies, and laws. The AJ found no irregularities in the
selection process and relied properly on the testimony at the hearing. Thus, we discern no basis
to disturb the AJ's findings.

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). 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
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factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Even if we assume arguendo that Complainant established a prima facie case of discrimination,
the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Specifically, that
while Complainant was qualified for the positions in claims 1 and 4, the selecting officials found
that Selectee1 and Selectee2 were simply better qualified for the positions in question. Here,
Complainant argued that she was plainly superior to Selectee1 for the position in claim 1. As an
example of her superior qualifications, Complainant noted that the vacancy had sought
candidates who had completed root cause analysis. Complainant had completed such training,
and Selectee1 had not. Therefore, Complainant argued that Selectee1 failed to even meet the
basic minimum qualifications for the position. Agency witnesses however indicated that while
Selectee1 did not complete root cause analysis, her application materials contained six references
to troubleshooting which related to root cause analysis. Coupled with other items in her
application package, and her interview performance, selecting officials found Selectee1 to be the
best appropriate fit for the position.

Regarding the position in claim 4, the Agency stated that Complainant was qualified, but again
was not the best fit for the position. Complainant argued that the Agency inappropriately
overlooked her Navy Electronic School, which she argues should have been considered the
equivalent of an associate degree. However, the Agency was under no obligation to do so.
Moreover, the vacancy announcement had stated that an actual degree, not degree equivalency,
was desired for the position. Complainant believed she was superior, and strongly disagreed
with Selectee2’s selection.

In non-selection cases such as the one now before us, Complainant could demonstrate pretext by
showing that her qualifications for the position were plainly superior to those of the
Selectee. Hung P. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015).
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Other indicators of pretext include discriminatory statements or past personal treatment
attributable to those responsible for the personnel action that led to the filing of the complaint,
comparative or statistical data revealing differences in treatment across various protected-group
lines, unequal application of Agency policy, deviations from standard procedures without
explanation or justification, or inadequately explained inconsistencies in the evidentiary
record. Mellissa F. v. U.S. Postal Service, EEOC Appeal No. 0120141697 (Nov. 12, 2015).
Based on the record, there is no clear evidence that Complainant was plainly superior to that of
the Selectee.

Complainant should bear in mind, however, that agencies have broad discretion to choose among
equally qualified candidates as long as the selection is not based on unlawful
considerations. Complainant v. Dept. of Homeland Security, EEOC Appeal No. 0120141478
(Jul. 31, 2015). They may select candidates with fewer years of experience if they believe that
such candidates are best qualified to meet the needs of the organization. Complainant v. Dept. of
Justice, EEOC Appeal No. 0120131151 (Feb. 25, 2015). They may even preselect a candidate as
long as the preselection is not premised upon a prohibited basis. Complainant v. Dept. of
Homeland Security, EEOC Appeal No. 0120132858 (Mar. 9, 2015).

Here, as detailed by the record and in the AJ’s well-reasoned decision, the record supports the
AJ’s determination that the Agency’s proffered reasons regarding non-selections were legitimate
and non-discriminatory. Complainant did not provide persuasive arguments, below or on appeal,
that the Agency’s actions were pretext for discrimination.

CONCLUSION

We AFFIRM the Agency’s final action implementing the AJ’s finding of no discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
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.
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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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The

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court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

April 26, 2019
Date