[Redacted], Chere S., 1 Complainant,v.John Ryder, Chair, Tennessee Valley Authority, Agency.

Equal Employment Opportunity Commission

Aug 2, 2022

Appeal No. 2021000614 (E.E.O.C. Aug. 2, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Chere S.,1 Complainant, v. John Ryder, Chair, Tennessee Valley Authority, Agency. Appeal No. 2021000614 Agency No. TVA-2015-0042 DECISION On October 27, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 15, 2020 final action 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 relevant time, Complainant worked as a Boilermaker Mechanical Maintenance Instructor for the Agency at Browns Ferry Nuclear Power Plant in Tennessee. On September 8, 2015, Complainant filed a formal complaint which raised the following claims: 1. Complainant was subjected to hostile work environment based on sex (female) when: a. On February 9, 2015, she was requested to support in-processing at Scottsboro to teach Rigging & Lifting classes from March 2-13, 2015. The 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. 2021000614 2 Maintenance and Technical Training Manager and Mechanical Maintenance Lead Instructor (MM Lead Instructor) both were aware of her medical restrictions from her doctor. b. On or about February 10, 2015, MM Lead Instructor requested changes to a Problem Evaluation Report (PER) which Complainant stated she had worked on for a while. c. On February 27, 2015, Complainant obtained knowledge of false information noted on her annual service review for FY 2014, and she was asked multiple times to sign a version of the service review which had not been corrected. d. On March 11, 2015, she obtained knowledge of a false statement made regarding a move to another cubicle. e. On March 11, 2015, she obtained knowledge that the Crane Advisor Council (CRAAC) assignment would be rotated “out,” and she was removed from the CRAAC team. f. On March 19, 2015, Complainant learned that a lesson plan she had worked on had been handled by the Maintenance and Technical Training Manager. g. On March 23, 2015, Complainant learned that MM Lead Instructor requested to meet with her to provide coaching. h. On March 30, 2015, MM Lead Instructor spoke to her in an offensive tone and used nonverbal communication that she felt was intimidating. She stated that this occurred in the presence of a named steward, a boilermaker, and the manager. i. On April 6, 2015, Complainant learned that the Maintenance and Technical Training Manager wanted to see her “In-Plant-Time” form. She stated that the manager was not in the office and that the form did not require only his signature but others on the site could have signed the form. j. On April 17, 2015, the Maintenance and Technical Training Manager stated to her, “[w]e need to forget that the meeting with IM ever happened,” in reference to the March 30, 2015 meeting. k. On April 21, 2015, Complainant learned that she was no longer on the distribution list for Training PER action items. She had been asking for several months that her name be removed as owner of all the PERS for the Mechanical Maintenance Training Department. 2021000614 3 l. On July 10, 2015, the Director, Nuclear Site Training discussed various complaints with Complainant regarding an Agency employee, and the Director informed Complainant that he would not remove the employee from his position. 2. Complainant was subjected to unlawful retaliation for her EEO activity regarding Claim (1), as evidence by the following: m. On December 17, 2015, after the weekly schedule meeting, MM Lead Instructor asked to meet with Complainant and her supervisor. During the meeting, MM Lead Instructor stated that the meeting was for Complainant and referenced her complaints about Mechanical not having a schedule and then not abiding by it. He also stated that Complainant “had only been in the shop for a total of one hour and forty-five minutes.” When Complainant asked MM Lead Instructor, “Are you monitoring me?” MM Lead Instructor responded “Yes, that’s my job.” Complainant told MM Lead Instructor that she worked for Supervisor Maintenance Training, and she understood that MM Lead Instructor gave her schedule assignments, but that Supervisor Maintenance Training. The Supervisor Maintenance Training began to speak, and MM Lead Instructor the manager was her supervisor. The manager began to speak and MM Lead grabbed up all his paper work in a snatching manner, stating “I’m done!” n. On or about December 17, 20115, MM Lead Instructor accused Complainant of being on Facebook by stating that “the reason that [you were] not done with [your] assignments was that [you] had been on Facebook.” o. On December 17, 2015, the Manager requested a meeting with Complainant in his office. During the meeting, the Manager commented that it was his understanding that she was not doing what MM Lead Instructor had asked. After Complainant explained the situation to the Manager, he asked that she stop by MM Lead Instructor’s office for direction on the days she was scheduled to work in the shop. She felt she was being singled out. p. As of December 21, 2015, the Director, Nuclear Site Training would not speak to her in hallways, auditoriums or meet with her even though she had been requested a meeting since before Thanksgiving 2015. q. On February 11, 2016, she learned that she was not selected for the Non- Accredited Instructor position for Job Number 50442. 2021000614 4 r. On February 25, 2016,2 she learned that she was not interviewed nor selected for the Instructional Technologist position for Job Number 504629. s. On June 29, 2016, she was not allowed to take a procedure writing class. After the manager told her that she could not attend the class, he immediately pulled up a chart on his big-screen TV, and stated, “YOU HAVE ALREADY MISSED 8 ½ WEEKS BEING OUT SICK THIS YEAR AND YOU ARE NEEDED IN THE CLASSROOM!!” [Emphasis in the original]. 3. Complainant alleges that she has been subjected to unlawful disparate treatment discrimination based on her disabilities (cervical neck surgery, fibromyalgia, sinuses) when: t. On or about May 3, 2016, she was reassigned to work directly for the manager, performing Supervisor Training and other assigned tasks and “[t]here is a big pay difference between the two.” After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). On August 12, 2020, the AJ issued a Notice of Proposed Summary Judgment.3 Complainant responded to the Motion. On September 11, 2020, the AJ issued a decision by summary judgment in favor of the Agency, finding no discrimination. In its September 15, 2020 final action, the Agency adopted the AJ’s decision finding no discrimination and harassment. The instant appeal followed. 2 The Report of Investigation (ROI) lists this date as February 25, 2015. 3 In the Notice of Proposed Summary Judgment dated August 12, 2020, the AJ noted that the record was sufficient for adjudication, no additional documentation was necessary, and Complainant’s renewed Motion to Compel and for Sanctions is “due to be denied. In an Order dated September 11, 2020, the AJ found that “any other pending motions are deemed moot.” 2021000614 5 ANALYSIS AND FINDINGS Disparate Treatment: Allegations (q) and (r) 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 a complainant to prevail, he or she 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. 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, non-discriminatory 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, as here, 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). Complainant first came to work for the Agency in May 1989 and worked as a Mechanical Technician for many years. At the time of the events at issue, Complainant was an INPO- Certified Instructor for about four years and had taught various courses such as Rigging and Mechanical Torqueing. She had about six months experience as Mechanical Maintenance Lead Instructor. Regarding allegation (q), Complainant alleged that on February 11, 2016, she learned that she not selected for the Non-Accredited Instructor position for Job Number 504542. The Training Support Manager (“the SO”) (male) was the selecting official. He explained that he created a selection matrix based on the job requirements, education, and experience. After a review of the nine applicants, the Training Manager and three Agency officials interviewed six applicants. Following the interviews, the SO selected the Selectee (male) based on his interview and experience. The SO explained that Complainant had similar experience to the person selected but failed to completely answer several of the interview questions, which is what distinguished the Selectee from her. The SO also noted that Complainant only had a high school diploma so did not score well in education. The record reflects that Complainant’s final score for the Non-Accredited Instructor position was 58.0 or the 5th ranked out of six 2021000614 6 applicants interviewed. In sum, SO stated Complainant was not selected because she scored significantly lower on the applicant scoring matrix than the person selected. Regarding allegation (r), Complainant alleged that on February 25, 2016, she learned that she was not interviewed or selected for the Instructional Technologist position for Job Number 504629. The Training Support Manager (“the SO”) was again the selecting official. The record reflects there were three applicants. As for Complainant’s resume, SO did not see anything above a high school diploma so he gave her zero for education. Regarding accredited training and experience, he gave her a 2. Complainant was not given an interview for the Instructional Technologist position because of her low score after the resume reviews. Complainant failed to prove, by a preponderance of the evidence, that the reasons proffered by management for her non-selections were a pretext for masking discriminatory or retaliatory motivations. Harassment/Hostile Work Environment Claim To prove her overall harassment/hostile work environment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her sex, disability (claim 3 only) or prior protected EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). Here, the AJ found, and the evidence of record supports, there was no evidence that the incidents proffered by Complainant to support her hostile work environment claim were motivated by unlawful animus rather than routine supervision, personality conflicts, or general workplace disputes and tribulations. The statutes under the Commission's jurisdiction do not protect an employee against all adverse treatment, including that resulting from a supervisor's autocratic attitude. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Complainant’s speculation and conclusory allegations of discriminatory or retaliatory motivations are not sufficient to meet her burden of proof. Rountree v. Department of the Treasury, EEOC Appeal No. 01A20129 (October 24, 2002) (Commission affirmed Administrative Judge’s issuance of decision without a hearing finding that the AJ appropriately determined that Complainant failed to present probative evidence supporting an inference of discrimination, and that “Complainant’s bare assertions did not constitute evidence sufficient to establish a prima facie case”). 2021000614 7 Without detailing each of Complainant’s allegations, we do feel several allegations are in need of further discussion. The record shows that in December 2014, Complainant had cervical neck surgery. Approximately eight weeks after her cervical neck surgery, Complainant returned to work. Upon Complainant’s return to work following her cervical neck surgery, she had medical restrictions for three months, including being unable to lift anything greater than ten (10) pounds, as well as continued therapy. During her recovery, Complainant said she was scheduled to be the instructor in a Rigging & Lifting class which she told management she could not due because the physical activity in the class was in conflict with her medical restrictions. Complainant concedes that she was ultimately not required to teach the class. The record also shows that in April 2015, Complainant had been out of work for a while due to sinus and throat problems, as well as fibromyalgia. Complainant asked her supervisor if someone else could teach her Self-Contained Breathing Apparatus class because she was still ill. On or around May 3, 2016, Complainant’s supervisor called Complainant into his office and asked her about taking her off the regular training schedule until she got her medical problems straightened out. He also asked Complainant when she would be able to work full weeks again. Complainant informed him that her throat issue was temporary, but her fibromyalgia was unpredictable and ongoing. Complainant alleged that on or about May 3, 2016, she was reassigned to perform Supervisor Training and other assigned tasks. It appears that the reassignment was the result of Complainant’s own request to provide training that did not impact her health conditions. Here, the image which emerges from considering the totality of the record is that there were conflicts and tensions with Agency management that left Complainant feeling aggrieved. However, the preponderance of the evidence does not establish that any of the actions taken by management were motivated by discriminatory or retaliatory animus. Complainant’s claim of harassment is precluded based on our findings that she failed to establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final action, implementing the AJ’s summary judgment decision finding no discrimination or unlawful retaliation was established. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 2021000614 8 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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” 2021000614 9 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 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’s signature Carlton M. Hadden, Director Office of Federal Operations August 02, 2022 Date