Fred D. Ufford, Complainant,v.Tom Kilgore, President and Chief Executive Officer, Tennessee Valley Authority, Agency.

Equal Employment Opportunity CommissionSep 20, 2007
0120073182 (E.E.O.C. Sep. 20, 2007)

0120073182

09-20-2007

Fred D. Ufford, Complainant, v. Tom Kilgore, President and Chief Executive Officer, Tennessee Valley Authority, Agency.


Fred D. Ufford,

Complainant,

v.

Tom Kilgore,

President and Chief Executive Officer,

Tennessee Valley Authority,

Agency.

Appeal No. 0120073182

Hearing No. 490-2007-00036X

Agency No. 0826-2006049

DECISION

Complainant filed an appeal from the agency's June 14, 2007 final

decision concerning his equal employment opportunity (EEO) complaint

alleging employment discrimination in violation of the Age Discrimination

in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

For the following reasons, the Commission AFFIRMS the agency's final

decision.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as a Police Officer for the Tennessee Valley Authority Police at the

agency's facility in Knoxville, Tennessee. Complainant applied for

the position of Criminal Investigator. Complainant did not receive an

interview and later learned that he was not selected for the position.

On August 26, 2006, complainant filed an EEO complaint alleging that he

was discriminated against on the basis of age (53) when:

On May 4, 2006, complainant was not interviewed or selected for a

position as a Sergeant, Investigator, Criminal Investigations Division,

TVA Police, Knoxville/Muscle Shoals, on Vacant Position Announcement

(VPA) No. 022127.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of his right to request a

hearing before an EEOC Administrative Judge (AJ). Complainant initially

requested a hearing but subsequently withdrew his request. Consequently,

the agency issued a final decision on June 14, 2007, pursuant to 29

C.F.R. � 1614.110(b) concluding that complainant failed to prove that

he was subjected to discrimination as alleged.

In its decision, the agency found that the selecting official (SO)

stated that of the 18 candidates who applied, interviews were limited

to the 5 candidates who scored over an average of 80 on their previous

physical fitness evaluations and also possessed marine operation or

boating experience. SO noted that complainant's resume and application

materials did not specify that he had experience operating marine vessels

and so, complainant was not interviewed or selected for either of the

two vacant positions.

On appeal, complainant states that he mentioned marine experience in

two places on his resume and therefore age discrimination was the real

reason he did not receive an interview and was not selected.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant

to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo

review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management

Directive 110, Chapter 9, � VI.A. (November 9, 1999). (explaining that

the de novo standard of review "requires that the Commission examine

the record without regard to the factual and legal determinations of the

previous decision maker," and that EEOC "review the documents, statements,

and testimony of record, including any timely and relevant submissions

of the parties, and . . . issue its decision based on the Commission's

own assessment of the record and its interpretation of the law").

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). Complainant

must initially establish a prima facie case by demonstrating that he or

she was subjected to an adverse employment action under circumstances

that would support an inference of discrimination. Furnco Construction

Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will

vary depending on the facts of the particular case. McDonnell Douglas,

411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate

a legitimate, nondiscriminatory reason for its actions. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately

prevail, complainant must prove, by a preponderance of the evidence, that

the agency's explanation is pretextual. Reeves v. Sanderson Plumbing

Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor

Center v. Hicks, 509 U.S. 502, 519 (1993).

In the instant case, we observe, as did the agency that the vacancy

announcement for which complainant applied states among the minimum

qualifications that the position "requires strong computer skills and

marine operation skills." While the announcement does not indicate

more specifically what is meant by the term "marine operation skills,"

several candidates, including those selected for interview described

their certification or skills operating watercraft and recreational

boating experience. We note that complainant's resume indicates he

"worked with" marine patrols, but does not specify whether he operated

the patrol boat or served in some other capacity with those doing so.

Accordingly, we find that complainant has not shown that the agency's

reasons for not selecting him for an interview (and thus not selecting

him for the vacant positions) were a pretext for discrimination.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

we AFFIRM the agency's final decision finding no discrimination.

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 20, 2007

__________________

Date

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0120073182

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120073182