Glenn D. Henry, Complainant,v.Craven H. Crowell, Jr., Chairman, Tennessee Valley Authority, Agency.

Equal Employment Opportunity CommissionJan 5, 2001
05a10011 (E.E.O.C. Jan. 5, 2001)

05a10011

01-05-2001

Glenn D. Henry, Complainant, v. Craven H. Crowell, Jr., Chairman, Tennessee Valley Authority, Agency.


Glenn D. Henry v. Tennessee Valley Authority

05A10011

January 5, 2001

.

Glenn D. Henry,

Complainant,

v.

Craven H. Crowell, Jr.,

Chairman,

Tennessee Valley Authority,

Agency.

Request No. 05A10011

Appeal No. 01983147

Agency No. EO 0109-97084

DENIAL OF REQUEST FOR RECONSIDERATION

The complainant initiated a request to the Equal Employment Opportunity

Commission (EEOC or Commission) to reconsider the decision in Glenn

D. Henry v. Tennessee Valley Authority, EEOC Appeal No. 01983147

(September 5, 2000).<1> In his complaint, complainant alleged that the

agency discriminated against him on the basis of age (41) when: (1) he was

not selected for one of five Operations Specialist, PG-6 positions; and

(2) the positions were classified at the management level to circumvent

his seniority rights under the collective bargaining agreement.

EEOC Regulations provide that the Commission may, in its discretion,

reconsider 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).

After a review of the complainant's request for reconsideration, 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. While complainant

in support of his request for reconsideration provides additional support

to his contention that the agency's selections in this case circumvented

the collective bargaining agreement and his seniority rights, we find

that the apparent violation of the agreement does not equate to a finding

of age discrimination. The Supreme Court has held that because age and

years of service (seniority) are analytically distinct, an employer can

take account of one while ignoring the other, and thus it is incorrect

to say that a decision based on years of service is necessarily

age based. Hazen Paper Co. v. Biggins, 507 U.S. 604, 611 (1993).

Complainant's arguments primarily focus on the contravention of the

agency's collective bargaining agreement and its related seniority rights,

but fail to establish that the agency unlawfully based its decisions on

complainant's age or on the belief that older workers could not perform

the positions in question. Id. at 610-11. Therefore, the decision

in EEOC Appeal No. 01983147 remains the Commission's final decision.

There is no further right of administrative appeal on the decision of

the Commission on this request for reconsideration.

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

January 5, 2001

Date

1 On November 9, 1999, revised regulations governing the EEOC's

federal sector complaint process went into effect. These regulations

apply to all federal sector EEO complaints pending at any stage in

the administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.