01A31805
09-27-2004
John P. Long, Complainant, v. Glenn L. McCullough, Jr., Chairman, Tennessee Valley Authority, Agency.
John P. Long v. Tennessee Valley Authority
01A31805
September 27, 2004
.
John P. Long,
Complainant,
v.
Glenn L. McCullough, Jr.,
Chairman,
Tennessee Valley Authority,
Agency.
Appeal No. 01A31805
Agency No. 0216-2001027
DECISION
BACKGROUND
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination in
violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405.
Complainant was an employee of the agency for about 28 years until
his termination in 1999. In June 1991, complainant accepted the
position of Operations Superintendent at Windows Creek fossil plant.
Subsequent to the acceptance, the agency hired Vice President (VP1)
from Florida Power and Light Company to take charge of the agency's
fossil fuel division. VP1 brought many managers from Florida with
him and began placing them within the agency including the Manager of
combustion turbines and distributive resources (Manager). In 1993, VP1
sought to replace complainant with his Florida employee. As a result,
in or about 1993, he filed and won an appeal with the Merit Systems
Protection Board against the agency involving the Vice Presidents of
the Fossil Power Group (VP1 and VP2).
In 1998, complainant was informed by VP1 that he would be subjected to a
reduction in force and replaced by a Florida employee. On March 2, 1999,
complainant filed an EEO complaint alleging discrimination in violation
of the ADEA. The matter was settled for a �substantial sum� on March
22, 1999. On June 6, 1999, complainant was terminated by a reduction
in force.
During 1999 and 2000, complainant worked as an independent contractor
in the power industry. In February 2000, he began working for General
Electric (GE) doing temporary jobs as a commissioning manager. On January
4 or 5, 2001, GE offered complainant a temporary job. He stated that
the GE Contact stated that the commissioning manager assigned to the
agency's Gallatin Fossil Plant was leaving to start a new job at the
agency's Lagoon Creek site. The GE Contact offered complainant two to
three week job finishing up �punch list� items and then he would go to
Lagoon Creek as �co-commissioning manager.�
On January 8, 2001, the GE Contact informed the representative of
Penpower, a subsidiary of GE, that he was told that complainant was a
�persona non gratis� with the agency. The Representative asked if this
precluded complainant's move to Lagoon Creek. The GE Contact stated that
his understanding of the agency's position was that complainant could
not be used at all on their projects and that they needed to replace
complainant on the remaining time he had at Gallatin and then on the
Lagoon Creek project as well. The same day, GE instructed complainant
to leave the Gallatin Plant immediately. Complainant stated that he
was informed by the Representative that he was a �persona non gratis�
and that he would not be allowed to work at agency sites in the future.
As a result, complainant indicates that he was not permitted to work
until GE assigned him to North Carolina in March 2001.
In March 2001, the representative contacted complainant to see if the
matter with the agency had been resolved because complainant was needed
as a deputy site manager. Complainant contacted the agency's new member
of management (VP3) who was below VP2 but above the Manager, about being
permitted on to an agency site. VP3 indicated that so long as GE took
responsibility and recommended him, the agency would not stand in the way.
However, VP3 did not contact the GE Contact or the Representative.
As a result, complainant lost the Lagoon Creek job.
Based on these incidents, complainant sought EEO counseling and
subsequently filed a formal complaint on February 16, 2001, alleging
that he was discriminated against on the basis of reprisal for prior EEO
activity when on January 8, 2001, an agency Manager notified GE that he
would not be allowed to work on any agency site then or in the future
resulting in his termination by GE.<1>
The complaint was initially dismissed the complaint for failure to state
a claim. The agency noted that complainant was a contractor and that GE,
not the agency, was the party that took action against him. Complainant
appealed the dismissal to the Commission. In Appeal No. 01A13290
(March 8, 2002), the dismissal was affirmed. Complainant requested
reconsideration arguing that the Manager informed GE that he was not
welcomed at the agency in reprisal for his prior complaint when he was
employed by the agency. We found in Request No. 05A30150 (November 5,
2002) that complainant failed to meet the criteria for reconsideration.
Nonetheless, following a clarification in the complainant's request for
reconsideration of the issue in the complaint, the agency reinstated the
complaint and directed that an investigation of the claim be undertaken.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
The FAD determined that the Manager had no awareness whatsoever of
complainant's prior EEO activity because he was not stationed at the
same location as complainant when he filed his prior complaint. Further,
the FAD noted that alleged reprisal occurred almost two years after the
EEO complaint was settled. Therefore, there was no causal connection
to raise an inference of discrimination. Accordingly, the FAD found
that complainant did not establish his prima facie case of retaliation.
Assuming complainant had established his prima facie case, the FAD
determined that the agency provided legitimate nondiscriminatory
reasons for its action. Namely, Manager stated that the agency had the
contractual right to approve and disapprove employees, work practices,
and equipment offered by contractors. Further, he indicated that the
agency would �swap out� employees who they felt did not meet the agency's
expectations. Manager averred that he never told GE that complainant
could not work on any agency job. He felt that complainant was not
qualified as a site manager at Gallatin. He claims that he made it clear
to GE that complainant could work in a subordinate role. VP3 averred that
he had heard that complainant had filed some kind of complaint of about
not being selected as a shift supervisor but he had no involvement on the
Lagoon Creek site. He also noted that he was not aware of complainant
being restricted from working at agency plants generally. VP2 stated
that he was not aware of complainant's prior complaint or settlement.
VP3 also said that complainant asked him to go over Manager's head to
VP2 about the Gallatin Plant but VP2 supported Manager's decision.
This appeal followed. On appeal, complainant contends that the FAD
incorrectly determined that he failed to establish his claim of unlawful
reprisal. He noted that the agency narrowly addressed the issue of his
job at the Gallatin Plant rather than being told that he was not allowed
to work on an agency site. Based on the contradictions in the file,
complainant asserts that the record supports his claim that the agency
retaliated against him because of his prior EEO activity. The agency
requests that we affirm its FAD.
ANALYSIS AND FINDINGS
Initially, we note that, based on complainant's clarification on his
request for reconsideration, the request for reconsideration in Request
No. 05A30150 was improvidently denied. In light of the foregoing,
the Commission finds that the decisions in 01A13290 and 05A30150 are
without force and effect.
In a reprisal claim, according to the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Found. for Exper. Biol., Inc. 425
F.Supp. 318 (D. Mass. 1976), aff'd. 545 F.2d 222 (1st Cir. 1976) (applying
McDonnell Douglas to claims of reprisal), and Coffman v. Department
of Veteran Affairs, EEOC Request No. 05960473 (November 20, 1997),
complainant may establish a prima facie case of reprisal by showing
that: (1) he engaged in protected activity; (2) the agency was aware of
his protected activity; (3) subsequently, he was subjected to adverse
treatment by the agency; and (4) a nexus exists between the protected
activity and the adverse action. Any adverse treatment that is based on
a retaliatory motive and is reasonably likely to deter the complainant
or others from engaging in a protected activity is prohibited. EEOC
Compliance Manual Section 8, "Retaliation" No. 915.003 at p 8-13 (May 20,
1998). See also Whitmire, v. Department of the Air Force, EEOC Appeal
No. 01A00340 (September 25, 2000). The burden of production then shifts
to the agency to articulate a legitimate, non-discriminatory reason for
the adverse employment action. In order to satisfy his burden of proof,
complainant must then demonstrate by a preponderance of the evidence that
the agency's proffered reason is a pretext for disability discrimination.
It is clear from the record that complainant participated in protected
activity in filing a prior EEO complaint alleging discrimination based
on age in 1999. In addition, the Manager designated complainant as a
�person non gratis� and would not allow him to work at any agency site
for GE. As a result, he was not permitted to work on the projects at
Gallatin and Lagoon Creek. Therefore, the only issues before us are
whether the agency official was aware of the prior EEO activity and
was there a causal connection between complainant's prior EEO activity
and the adverse action. The Manager averred that he was not aware of
complainant's prior EEO activity particularly because he was not stationed
at the same facility as complainant at the time of his prior complaint.
Complainant refutes the Manager's claim by noting that his complaints
were based on VP1's attempt to move complainant out of the agency in
order to make room for others from Florida, such as the Manager. Further,
all other management officials knew of complainant's prior EEO activity.
As noted, VP3 who also was not present in the same site as complainant
during the relevant time averred that he had heard of complainant's
prior EEO activity at a meeting. In addition, the Manager's secretary
(Secretary) stated in her affidavit that the Manager did say that
complainant had already gotten a lot out of the agency. Based on a
totality of the circumstances, the record shows that the Manager and
other management officials at the agency were aware of complainant's
prior EEO activity and of his substantial settlement agreement.
In addition, we find the comment from the Manager stating that complainant
had already received enough money from the agency was directly related
to the Manager's decision to remove complainant from the Gallatin
work site. Accordingly, we find that complainant has shown a causal
connection between his protected activity and the agency's statement
that complainant is a �persona non gratis.� Therefore, complainant has
met his burden of establishing a prima facie case of unlawful retaliation.
Now the burden shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its action. Upon review, the agency only
provides a reason for having GE remove complainant from the Gallatin
site as noted above. In addition, the Manager denied every stating that
complainant was not welcome on any agency site.
Now that the agency has satisfied its burden, complainant must prove by a
preponderance of the evidence that the legitimate reasons offered by the
agency were not its true reasons, but were a pretext for discrimination.
That is, complainant may attempt to establish that he was the victim of
intentional discrimination and the trier of fact �may still consider
the evidence establishing the [complainant's] prima facie case �and
inferences properly drawn therefrom . . . on the issue of whether the
[agency's] explanation is pretextual.'� Reeves v. Sanderson Plumbing
Product, Inc. 120 S.Ct. 2097 (2000) (quoting Burdine, 450 U.S. at 255,
n. 10). That is to say, a prima facie case of discrimination, combined
with sufficient evidence to find that the agency's reasoning is false,
shall allow the Commission to conclude that the agency's action was
discriminatory.
Upon review, we find that complainant has done so. In particular,
the Manager denied rejecting complainant from any agency site. However,
there are e-mails from the GE Contact and the Representative which clearly
indicate that the Manager did not want complainant on any agency site.
As to the issue of complainant's qualifications to work on the Gallatin
site, the Manager did not review complainant's credentials. Further, VP3
averred that if GE recommended complainant, it would not be questioned.
Despite GE's clear trust in complainant's ability and e-mails indicating
their attempts to get the agency to accept the assignment of complainant
to the Gallatin and Lagoon Creek sites, the Manager rejected complainant.
Upon review of the record, the Commission finds that the reasoning
provided by the Manager are not worthy of credence. Accordingly, we
find that complainant has established that the agency's reasons were
pretext and that the agency's action was unlawful retaliation.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we reverse the agency's final
decision and remand this case to the agency to take remedial actions in
accordance with this decision and Order below.
ORDER (C0900)
The agency is ordered to take the following remedial action:
Within thirty (30) days from the date on which the decision becomes
final, the agency shall consider taking disciplinary action against
the Manager. The agency shall report its decision. If the agency
decides to take disciplinary action, it shall identify the action taken.
If the agency decides not to take disciplinary action, it shall set
forth the reason(s) for its decision not to impose discipline.
The agency is directed to conduct training for the Manager who was found
to have retaliated against complainant. The agency shall address the
employee's responsibilities with respect to eliminating discrimination
in the workplace. The agency shall provide such training within ninety
(90) calendar days from the date on which the decision becomes final.
The agency shall not make any negative references, if any, to the removal
of complainant as a GE contractor from the Gallatin Fossil Plan project.
Any decisions in the future regarding complainant as a contractor to
the agency shall be made by persons other than the Manager.<2>
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Gallatin Fossil Plant facility
copies of the attached notice. Copies of the notice, after being
signed by the agency's duly authorized representative, shall be posted
by the agency within thirty (30) calendar days of the date this decision
becomes final, and shall remain posted for sixty (60) consecutive days,
in conspicuous places, including all places where notices to employees are
customarily posted. The agency shall take reasonable steps to ensure that
said notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (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
September 27, 2004
__________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission ("EEOC") dated _____________________
which found that a violation of the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. has occurred.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
The Tennessee Valley Authority, Gallatin Fossil Plant, supports and will
comply with such Federal law and will not take action against individuals
because they have exercised their rights under law.
The Tennessee Valley Authority, Gallatin Fossil Plant, has been found
to have retaliated against a former employee. As a result, the agency
has been ordered by the EEOC to provide training regarding unlawful
retaliation to the responsible management official and to consider
disciplining the management official. The Tennessee Valley Authority,
Gallatin Fossil Plant, will ensure that officials responsible for
personnel decisions and terms and conditions of employment will abide
by the requirements of all Federal equal employment opportunity laws
and will not retaliate against employees who file EEO complaints.
The Tennessee Valley Authority, Gallatin Fossil Plant, will not in any
manner restrain, interfere, coerce, or retaliate against any individual
who exercises his or her right to oppose practices made unlawful by,
or who participates in proceedings pursuant to, Federal EEO law.
______________________________
Date Posted: ____________________
Posting Expires: ________________
29 C.F.R. Part 1614
1 As noted above, the record indicates that complainant was not fired
by GE. He was not permitted to work at any agency facilities but GE
was able to place him in another position in North Carolina in March 2001.
2We note that since this complaint was brought under the ADEA, neither
compensatory damages nor attorney's fees are available remedies.
See Falks v. Department of Treasury, EEOC Request No. 05960250 (September
5, 1996).