0120114331
06-25-2013
James P. Pickett, Complainant, v. Bill Johnson, President and Chief Executive Officer, Tennessee Valley Authority, Agency.
James P. Pickett,
Complainant,
v.
Bill Johnson,
President and Chief Executive Officer,
Tennessee Valley Authority,
Agency.
Appeal No. 0120114331
Agency No. 2011032
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's August 24, 2011, final decision concerning his equal employment opportunity (EEO) complaint alleging 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. For the following reasons, the Commission AFFIRMS the Agency's final agency decision (FAD) which found no discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Laborer Foreman at the Agency's Radiation Protection Division at the Sequoyah Nuclear Plant in Tennessee. Complainant learned of a vacancy for a Supervisory position in Nuclear Plant Services and applied.
On October 31, 2010, he learned from his Supervisor (S1) during a meeting that the vacancy had been filled by someone from outside of the Agency. S1 described the selectee as being very smart. Feeling that her comment was insulting to him, Complainant requested a private meeting with the supervisor to question why he had not been interviewed for the position. S1 informed Complainant that he had not been invited for an interview because he had failed a supervisory assessment test and because he lacked the necessary education. The position description required that candidates possess a B.S. Degree in a science or engineering subject, or equivalent training and experience, as well as "eight or more years experience in plant services/radiation protection. Based on Complainant's years of experience, 15 in his current shop and 37 years overall, he was deemed minimally qualified and was allowed to take the supervisory assessment test. A failing score on the supervisory assessment was considered a hurdle to being considered for the job. Complainant was told that he scored 3 out of 10 on the assessment test which was considered a failing score. According to the test, Complainant was not likely to succeed in a supervisory position. Another candidate also scored 3 out of 10 and was removed from further consideration. Six other candidates also took the test, and four scored high enough on the assessment, i.e., at least a 5, that the selecting official did not need approval from Human Resources (HR) to make the selection.
Complainant argued that he should have been selected for the position based on his experience. He asserted that he has been running the "shop" for the last fifteen years. He indicated that he filled in when the supervisor was absent, on vacation, or otherwise not available. He completed all of the paperwork and ran the crew. S1 denied Complainant's involvement in running the shop and indicated that Complainant's only responsibility in her absence had been to instruct the laborers what their responsibilities were each day and she maintained that Complainant had never served in the role of supervisor. The selectee, on the other hand, met the educational requirement, passed the assessment test, had been a manager, and had numerous years of industrial management experience working in a plant services environment.
Complainant also argued that he was not selected for the position because of his prior EEO participation. He filed an EEO complaint in April 2008, against his former supervisor. She is no longer at Sequoyah but she and S1 were friends so Complainant maintains that S1 was aware of the prior complaint.
On February 4, 2011, Complainant filed the instant complaint alleging that the Agency discriminated against him on the bases of race (African-American) and reprisal for prior protected EEO activity when on or about October 31, 2010, he was not selected for a Supervisory position in Nuclear Plant Services.
Following an investigation by the Agency, Complainant failed to indicate whether he wanted a hearing or a FAD so a FAD was issued. The FAD found that Complainant failed to establish that he had been subjected to race discrimination or reprisal. Specifically, the FAD determined that assuming arguendo that Complainant established a prima facie case of discrimination and reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant did not score high enough on the supervisory assessment to be considered for the position. S1 explained that Complainant could not move forward for an interview because of his score. Further, S1 indicated that while she was aware of Complainant's prior EEO complaint, the incident had occurred two and a half years earlier and was not considered in her decision. The Agency maintained that there was no nexus between Complainant's prior EEO activity and the instant complaint because it was too remote in time. The Agency found that Complainant failed to show that the Agency's articulated legitimate, nondiscriminatory reasons were pretext for discrimination. Therefore, the Agency determined that Complainant failed to show that he was subjected to discrimination or reprisal when he was not selected for the supervisory position. The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant's attorney requests a hearing regarding this matter.1 Complainant contents that he has been subjected to ongoing discrimination because he has applied for numerous supervisory positions but has not been selected for one. Further, Complainant maintains, among other things, that "the fact that a person with no TVA or nuclear power plant experience was selected over me with over 37 years of experience with this company is humiliating especially to be constantly over-looked, while positions that I'm qualified for are given to inexperienced individuals that I will eventually have to train." Further, Complainant argues that the test was used as a means to discriminate against him as it was used to give the Agency the opportunity to deny him an interview. He maintains that during Supervisor Academy training, he was told that if you fail the test, it's up to management to determine if they will interview you. Complainant indicates that he does not understand how he could be allowed to fill in for S1 so often but yet not be quailed to have a supervisory position permanently.
In response, the Agency asks that its FAD finding no discrimination be affirmed.
ANALYSIS AND FINDINGS
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the Agency's final decision. We find that even if assume arguendo that Complainant established a prima facie case of race discrimination and reprisal, the Agency has articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant did not score high enough on the supervisory assessment to be offered an interview for the position. With regard to Complainant's contentions on appeal, the Commission finds that another candidate, (white), that scored the same as Complainant was also removed from further consideration for the position. Therefore, we find the record does not support Complainant's argument that discriminatory animus was involved with regard to his being denied an interview. Further, the record reveals that management had the option of using the supervisory assessment as a screening tool. In this instance, only those that passed the test were considered for interviews so again discriminatory animus cannot be inferred.
Moreover, while Complainant has clearly shown that he has substantial experience and has been allowed to fill in for S1 on numerous occasions, he has not demonstrated that he is so better qualified for the position than the selectee that discrimination could be inferred. We find that Complainant has failed to show that the Agency's articulated legitimate, nondiscriminatory reasons were pretext for discrimination or reprisal. Finally, to the extent that Complainant is alleging that he is currently being subjected to discrimination, he is advised to contact an EEO Counselor. Accordingly, because the preponderance of the evidence of record does not establish that discrimination occurred, the Agency's FAD, finding no discrimination, is hereby AFFIRMED.
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
__6/25/13________________
Date
1 The record indicates that Complainant failed to respond to the Agency regarding whether he wanted a hearing or a FAD. As such, he waived his rights to a hearing and a FAD was issued.
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0120114331
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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