0120132614
08-18-2015
Complainant, v. Bill Johnson, President and Chief Executive Officer, Tennessee Valley Authority, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant,
v.
Bill Johnson,
President and Chief Executive Officer,
Tennessee Valley Authority,
Agency.
Appeal No. 0120132614
Hearing No. 490-2010-00158X
Agency No. 20100027
DECISION
Complainant filed an appeal from the Agency's June 17, 2013 final order concerning his equal employment opportunity (EEO) complaint. He alleged employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal timely pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant, seeking employment at the Agency's facilities in Chattanooga and Knoxville, Tennessee. He was not an employee of the Agency.
On January 8, 2010, Complainant contacted an EEO Counselor. On March 12, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (legally blind in one eye) and age (57), when the Agency did not select him for any of the positions for which he applied. Specifically, Complainant alleged discrimination, when:
1. On January 1, 2010, he was not selected as a Facilities Maintenance Technician under Requisition No. 7016;
2. On December 26, 2009, he was not selected as a Safety Consultant III on Requisition No. 6818;
3. On November 26, 2009, he was not selected as the Director of Nuclear Safety and Licensing on Requisition No. 6807; and
4. On an unspecified date, he was not selected for the position of Homeland Security Physical Specialist on Requisition No. 6480.
The Agency accepted the first three claims for investigation. The Agency dismissed the fourth claim for untimely EEO contact.
In addition, the record includes an email, dated August 25, 2010, from Complainant in which he raises claims of age and disability discrimination with regard to two additional non-selections for applications (Requisition 7381) and Requisition 7674, submitted on March 20, 2010 and April 11, 2010.
Complainant was employed by the Elizabethton Electric Department as a Safety Director at the time of the applications at issue. He previously worked for the Elizabethton, Tennessee Police Department for 30 years before retiring in 2007. Since 2007, Complainant applied online for over 300 positions with the Agency.
He was interviewed for one position which pertained to police enforcement, but the Agency did not select him. When Complainant was asked why he believed that his non-selection was due to his disability of age, Complainant conceded that "I have no idea how they were aware of it or I have no idea how they come to their conclusions." Investigative Report (IR) at p. 106. He speculated that TVA may have viewed him as a high risk for retirement and insurance purposes. IR at 108. He also responded that he believed that he was a victim of discrimination because he received no responses from TVA to his applications.
With regard to the claims before us, the record reflects the following information.
Claim 1 Facilities Maintenance Tech, Requisition Name 1000007016, dated 01/01/2010
Complainant applied online for the Facilities Maintenance Tech position. The duties of this position include maintaining and repairing heating, ventilating, air conditioning, plumbing and refrigeration equipment and systems. The minimum qualifications included 'three or more years experience in the maintenance and repair of equipment found in office buildings."
TVA recruiters review the job applications that were submitted online. If a job applicant does not meet the minimum qualifications, no further review or consideration is given. The applications that do not meet the minimum qualifications are not forwarded to the selecting officials Complainant's application did not show that Complainant had the required experience. Complainant's application was not forwarded for further consideration.
The individuals screening for the minimum qualifications were not aware of Complainant's age or disability. The Agency's stated reason for the non-selection is the lack of qualifications.
Claim 2 Safety Consultant Level III, Requisition Name 1000006818, dated 12/26/2010
Similarly, the initial screeners were unaware of Complainant's age or disability with regard to claim 2.
This position required a Bachelor's degree in industrial safety, safety-related engineering and a minimum of seven years of industrial occupational health and safety experience. Complainant's resume did not show that he had a college degree. His application was not forwarded for further consideration.
Claim 3 Director of Nuclear Safety & Licensing, Requisition Name 1000006807, dated 11/26/2010
The record does not show that the screeners were aware of Complainant's age or disability.
The position entails monitoring nuclear safety, site security and emergency preparedness for the Sequoyah Nuclear Plant. The minimum educational requirements are for a Bachelor's degree in science or engineering and a minimum of 12 years working experience in the field.
Complainant's application did not include a college degree or any prior experience working in the nuclear field.
Claim 4 Homeland Security Physical Specialist, Requisition Name 1000006480, dated 11/19/2009
The fourth position was announced on the Agency's online system. Complainant applied, but the Agency canceled the vacancy on June 28, 2010 and the Agency did not fill the position. The position announcement was cancelled "due to inactivity by the hiring organization for more than six months."
At the conclusion of the investigation of the subject investigation, the Agency provided Complainant with a copy of the report of investigation. Complainant requested a hearing before a United States Equal Employment Opportunity Commission Administrative Judge (AJ). After both parties submitted motions for a decision without a hearing, the AJ assigned to the case issued a decision without a hearing on May 8, 2013.
The AJ Decision
For purposes of analysis, the AJ assumed that Complainant "is a member of a protected class on the bases of both age and physical disability." The AJ found that Complainant could not prove that he was qualified for each position.
The AJ found that because TVA's recruiters determined that Complainant did not meet the minimum qualifications for the positions, he was screened out from further review. The AJ also reasoned that the TVA recruiters "did not have reason to know the Complainant's alleged disability" since that information is loaded into different fields that the recruiter would have to take steps to access. The AJ noted that Complainant "speculated that TVA viewed him as a high risk for retirement and insurance purposes, admitting that [he was] speculating." The AJ also noted that Complainant had been selected for interviews for two of 289 applications he submitted and both had to do with law enforcement or security-related positions.
The AJ stated that "once an EEO case has reached the pretext step of the McDonnell Douglas analysis, the pretext burden merges with Complainant's ultimate burden of persuasion to demonstrate, by a preponderance of the evidence, that he was the victim of intentional discrimination." The AJ concluded that "Complainant has offered no evidence to demonstrate that the Agency's proffered reasons for not selecting him have any 'weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions' that would make it 'unworthy of credence.'" The AJ concluded that "Complainant failed to satisfy his burden of establishing that he was subjected to discrimination based on age and disability" stating "there is nothing in this record that could be used by Complainant to prove that he was qualified for any of the four positions at issue in this case." The AJ granted the Agency's Motion for Summary Judgment.
The Agency adopted the AJ decision.
This appeal followed.
ANALYSIS AND FINDINGS
We must 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). 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.
On appeal, Complainant argues that the sheer "numbers of denials show a reasonable suspicion of discrimination." Complainant also asserts that the Agency did not notify him of the date he was denied employment for every application. He asserts that there is "a deliberate indifference to the spirit and meaning of the ADAA regulations" and that the Agency had knowledge of his age and disability and he was qualified, but not considered for even menial labor. The Agency argues that there is no genuine dispute of material fact as to its stated reasons and the decision should be affirmed.
The Agency also noted that Complainant submitted documentation regarding applications submitted after the record closed in this case, but he did not file a complaint as to those applications.
Disparate Treatment / Age and Disability
Section 633(a) of the ADEA states that "all personnel actions affecting employees or applicants for employment in executive agencies "shall be made free from any discrimination because of age." Similarly, a complainant may establish a prima facie case of disability discrimination by showing that: (1) he or she is an individual with a disability; (2) he or she was "qualified" for the position held or desired; (3) he or she was subjected to adverse employment action by the agency because of his or her actual or perceived disability. To prevail in a disparate treatment claim, Complainant must establish that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. Waters, 438 U.S. 567, 576 (1978).
For purposes of our analysis, we will presume, as did the AJ, that Complainant established his prima facie claims with regard to both his age and disability claims. However, the prima facie inquiry may be bypassed, where the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713 (1983).
The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. The Agency provided a clear, precise reason with regard to the qualifications that Complainant failed to meet. With regard to claims 1 though 3, the Agency stated it determined that Complainant lacked the qualifications and his applications were rejected for that reason. With regard to claim 4, the Agency stated that position was not filled after six months of inactivity. To the extent there were adverse actions by the Agency, the adverse actions were predicated on those reasons.
To ultimately prevail, Complainant must provide evidence that the Agency's explanations are a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).
In this case, Complainant did not provide any evidence that challenged the Agency's stated reasons that it rejected Complainant's applications because the screeners determined that the applications did not meet the minimum qualifications. Complainant did not offer any evidence that the reasons were a pretext for unlawful discrimination. There is also no evidence that disputes the reason that the Agency offered as to why it did not fill the vacancy.
Instead, Complainant argues that the sheer number of rejections should be considered sufficient proof of discrimination. The testimony is undisputed, however, that: 1) Complainant lacked the specified qualifications; 2) no resumes were forwarded for further consideration if the screeners determined that the applicant lacked the qualifications; and 3) the individuals screening had no knowledge of Complainant's age or disability.
Looking at all of the evidence in the light most favorable to Complainant, there is no relevant evidence that would show that any of the subject actions were based on Complainant's age or disability.
Finally, we note that to the extent that Complainant wishes to address additional claims of discrimination regarding the applications that were submitted after the complaint filing at issue, he should contact an EEO Counselor.
After a careful review of the record, we agree with the conclusion of the AJ that there was no genuine dispute of material fact with regard to the claims in the instant complaint. Therefore, we find that judgment as a matter of law for the Agency was appropriately entered in this case.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Order for the reasons stated herein.
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 tends 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 (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 Complainants Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 18, 2015
__________________
Date
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