0120111155
07-13-2012
Willie C. Almon, Complainant, v. Tom Kilgore, President and Chief Executive Officer, Tennessee Valley Authority, Agency.
Willie C. Almon,
Complainant,
v.
Tom Kilgore,
President and Chief Executive Officer,
Tennessee Valley Authority,
Agency.
Appeal No. 0120111155
Hearing No. 420-2010-00062X
Agency No. 0917-2009056
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated December 30, 2010, affirming an EEOC Administrative Judge's (AJ) decision finding no discrimination on his equal employment opportunity (EEO) complaint which alleged discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. 2000e et seq.1 The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
ISSUES PRESENTED
Whether Complainant was discriminated against based on his race (Black) when:
1. He learned on or about July 16, 2009, that he was not selected as a Foreman of the Fix-it Now team;
2. He was denied the opportunity to attend a diesel training class in North Carolina on or about August 26, 2009;
3. He was not selected to be a foreman of his midnight shift on or about August 26, 2009; and
whether he was discriminated against based on his race and reprisal for prior EEO activity under Title VII when:
4. He received a three day suspension on or about November 16, 2009, for missing work on September 11, 2009.
BACKGROUND
At the time of events giving rise to this complaint Complainant worked as a Nuclear Mechanical Technician, Level II in the Agency's Mechanical Maintenance Shop at the Browns Ferry Nuclear Plant in Decatur, Alabama. On September 17, 2009, he filed an EEO complaint, as amended, alleging the above issues. Following an investigation Complainant requested a hearing before an EEOC AJ. The AJ made a decision without a hearing finding no discrimination, which the Agency affirmed.
The Mechanical Maintenance Shop at the Browns Ferry Nuclear Plant has three shifts, i.e., the day shift (7 AM to 3:30 PM), the evening shift (3 PM to 11 PM) and the midnight shift (11 PM to 7 AM). There are no permanent foremen in the Mechanical Maintenance Shop. Instead, there are temporary (referred to as regular) and dual-rate foremen. A dual-rate foreman stands in for a regular foreman when he is not available on a particular shift and is sometimes used to supervise a crew of craft technicians for specific jobs of short duration typically less than several months. The Agency's Mechanical Maintenance Shop uses Fix-it-Now teams to do maintenance work that needs immediate attention so as not to impact currently scheduled work.
In July 2009 the Agency placed a four week short term Fix-it-Now team on the evening shift, a shift which Complainant did not work. Rather than bring on another foreman for the Fix-it-Now team the Agency utilized the existing regular and dual-rate foreman on the evening shift. The AJ found that Complainant failed to make out a prima facie case of race discrimination because there was no selection of a new foreman on the evening shift.
On claim 2 the AJ found that Complainant was originally chosen to go to the diesel training class with nine co-workers, but he and a white co-worker who was also chosen were not given the training because of a scheduling conflict, i.e., both committed to work on an outage at the Watts Bar Nuclear Plant in Tennessee. The record reflects that this was an important commitment to perform a vital function.
On claim 3 the AJ found that while Complainant made out a prima facie case, the Agency explained that it chose the two foremen (white) because they scored better than Complainant on a rating matrix. Complainant had a significantly lower score. The matrix rated on character traits, experience, supervisory skills displayed, and current job level. Some 11 supervisors had an opportunity to give input into the matrix, which was scored by consensus, albeit those who did not know the person being rated would not participate in that rating. Complainant's second line supervisor, who had input into the matrix, stated that two reasons Complainant did not score higher were his inconsistent work performance and the need to develop better communication skills. The AJ found that Complainant did not prove that the Agency's explanation for its action was pretext to mask race discrimination.
In August 2009 the Mechanical Maintenance Shop management announced to employees that it would start enforcing an existing call-in policy for unscheduled absences requiring contact with a supervisor, not a foreman. Enforcement went into effect the first week of September 2009. Complainant was scheduled to work on the midnight shift on September 11, 2009, and called a supervisor that evening saying he was not coming to work. Complainant contended that he got permission from his foreman earlier in the week not to come in.2 Complainant planned to go to his son's football game. The supervisor denied the leave. He stated that Unit 3 was being brought down for maintenance and there were only three people scheduled to come in for the midnight shift, and he advised Complainant of the situation. Complainant communicated that he would not come in, and did not do so. By letter dated November 16, 2009, Complainant's second line supervisor notified him that he was being suspended for three days under charges of insubordination/unapproved leave.
The AJ found that Complainant did not make out a prima facie case of race discrimination. The AJ reasoned that Complainant violated the call-in rule and Comparison 1 (white) and Comparison 2 (black) who violated the same rule got three day suspensions. The AJ found that Complainant made out a prima facie case of reprisal discrimination but did not show the Agency's explanation for suspending him was pretext to mask discrimination.
The Agency issued a FAD with its own analysis which affirmed the AJ's decision.
On appeal Complainant reiterates arguments he made below. On issue 1 he contends that when the regular foreman took over the Fix-it-Now team another person, not Complainant, took the regular foreman's position. The Agency counters that this is a new issue which was not accepted for investigation by the Agency or accepted by the AJ.
On issue 4 Complainant contends that he was not aware of the Agency's new intention to enforce the call-in policy, and his signature on a roster indicating such is a forgery. He takes issue with his second line supervisor's statement that had Complainant not directly indicated to his supervisor that regardless he was not coming in he probably would have gotten coaching or a verbal warning. In support thereof Complainant contends that Comparison 2 got a three day suspension for going home after lunch after he told his foreman but did not let his supervisor know. Complainant also contends that Comparison 3 (white) did not show up to work after being called in involuntarily and only got a letter in her file. In response the Agency refers to a reply brief it previously submitted to the AJ. The Agency argued that the forgery contention was unverifiable and unsubstantiated. It argued that Complainant's contention about Comparison 2 was pure hearsay without any sworn testimony in support thereof. On Comparison 3 the Agency argued that Complainant 3 was not similarly situated to her citing a supporting statement by Complainant's second line supervisor. The Agency argued that Comparison 3 did not show up to work on a Saturday, not her shift, after being called in late Friday afternoon for involuntary overtime, and that she called in sick Friday evening without talking to her supervisor. It argued that Comparison 3 did not refuse to come in while talking to her supervisor, as Complainant did, and did not miss a regularly scheduled shift, as Complainant did.
In opposition to Complainant's appeal the Agency argues that its FAD (which affirmed the AJ's decision) should be affirmed.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.B. (November 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). This essentially means that we should look at this case with fresh eyes. See id. at Chapter 9, � VI.A.
We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
As an initial matter we find that the investigation was adequately developed for summary disposition, and that the AJ properly made a decision without a hearing because there were no genuine issues of material fact.
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
We agree with the AJ's findings of no discrimination and will not reiterate the AJ's findings again here. But we will address Complainant's appeal arguments.
On issue 1 we agree the Agency's argument that Complainant is raising a new issue which was not accepted for investigation. We add that there was no evidence in the record supporting his contention that someone replaced the regular foreman.
On issue 4, regardless of whether he was informed that the call-in policy would be enforced, Complainant's second line supervisor, who suspended him, had reason to believe Complainant was informed of the policy because supervisors were instructed to notify their staff of it. Complainant's information about Comparison 2 is vague. He does not give the reason Comparison 2 went home, i.e., the circumstances of his departure which could have played into the reason he was suspended. We agree with the Agency that Complainant is not similarly situated to Comparison 3. Complainant failed to prove pretext.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the findings of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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
with the Court 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
July 13, 2012
__________________
Date
1 Complainant prematurely filed his appeal on December 17, 2010. The appeal, which was pending, was perfected when the Agency affirmed the AJ's decision dated November 19, 2010. We add that on January 11, 2011, after receiving the FAD, Complainant filed his appeal again.
2 The foreman denied giving Complainant permission, and stated he told Complainant that it was not up to him (the foreman) to make the decision.
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0120111155
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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