0520070459
07-25-2007
Duane K. McPeters, Complainant, v. Tom Kilgore, President and Chief Executive Officer, Tennessee Valley Authority, Agency.
Duane K. McPeters,
Complainant,
v.
Tom Kilgore,
President and Chief Executive Officer,
Tennessee Valley Authority,
Agency.
Request No. 0520070459
Appeal No. 0120064608
Agency No. 11262004008
DENIAL
Complainant timely requested reconsideration of the decision in Duane
K. McPeters v. Tennessee Valley Authority, EEOC Appeal No. 0120064608
(March 13, 2007). EEOC Regulations provide that the Commission may,
in its discretion, grant a request to reconsider (RTR) any previous
Commission decision where the requesting party demonstrates 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. See 29 C.F.R. �
1614.405(b). For the following reasons, complainant's RTR is denied.
The record reflects that complainant filed a formal complaint, alleging
that the agency discriminated against him in violation of the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. Specifically, he alleged discrimination on the basis of age
(DOB 2/23/1951) and in reprisal for prior EEO activity (participation
as a witness) when he was not selected for either of two Consultant
positions at the Paradise or Cumberland Fossil Plants. These positions
were advertised on Vacant Position Announcement Number 019469, in or
about September 2003. The record reveals that the agency selected two
internal candidates (CJ and JH), ages 32 and 28 respectively, for the
two positions.
Following the agency's investigation of his complaint, complainant
requested a final decision (FAD). On May 24, 2005, the agency issued
a decision, finding no discrimination. The agency determined that
complainant established a prima facie case of age discrimination, but
did not establish a prima facie case of reprisal. It further found
that management offered legitimate, nondiscriminatory reasons for its
actions. Specifically, in relevant part, while complainant's scores
were in the top tier, the selecting official (SO) and other interview
panelists expressed serious concerns about complainant's responses in
the interview to questions about safety and employee discipline for
violations of safety rules. Although complainant advanced several
arguments to show that the reasons articulated were a pretext to mask
discrimination, the agency concluded that the evidence did not support
a finding of discrimination.
Complainant appealed the agency's FAD to the Commission on June 17, 2005.
The Commission, in EEOC Appeal No. 0120064608, affirmed the agency's
finding of no discrimination.
On July 10, 2006, complainant filed the subject RTR. He argues, among
other things, that he has established that his qualifications were plainly
superior to those of the two selectees, CJ and JH. He notes in this
regard that the two candidates did not possess the requisite experience
as listed in the internal Vacant Position Announcement.1 Moreover,
complainant asserts that the Commission found age discrimination as
to the same hiring action of CJ and JH with respect to his coworker
(the Coworker). The complainant contends that the Coworker is 10 months
younger than he is, and that they have similar educational background
and experience. Finally, complainant asserts that the interview panelists
mischaracterized statements he made during the Interview regarding safety
and employee discipline.
In response, the agency reiterates that complainant was not selected
for the position due to his interview responses on safety and employee
discipline for violations of safety rules, and it notes that complainant
only denied having made the aforesaid statements in his RTR. The agency
requests that the RTR be denied.
In a request to reconsider, a complainant is required to show that the
appellate decision involved a clearly erroneous interpretation of material
fact or law; or the appellate decision will have a substantial impact on
the policies, practices, or operations of the agency. See 29 C.F.R. �
1614.405(b). "A request for reconsideration is not a second appeal to
the Commission." Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-17 (November 9, 1999).
In the present matter, the evidence demonstrates that the selectess, CJ
and JH, met the requirements set forth in the Internet Vacant Position
Announcement. Moreover, complainant's case is distinguishable from
that of the Coworker because here the interviewers expressed concerns
about complainant's views as to safety and employee discipline for
violations of safety rules. Although complainant has disputed the
panelists characterization of his statements as to safety, and although
complainant may have an excellent safety record, affidavit testimony
reveals that the panelists were troubled by complainant's responses to
questions on safety during the interview. In sum, complainant failed
to prove by a preponderance of the evidence that the proffered reasons
articulated by agency were pretext for age discrimination or reprisal.
After reconsidering the previous decision and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. � 1614.405(b), and it is the decision of the Commission to deny
the request. The decision in EEOC Appeal No. 0120064608 remains the
Commission's final decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
_____7/25/07______________
Date
1 Complainant acknowledges that that the Internet Vacant Position
Announcement did not have the same experience requirements.
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0520070459
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036