05A20507
07-31-2002
William R. Nevin, Complainant, v. Glenn L. McCullough, Jr., Chairman, Tennessee Valley Authority, Agency.
William R. Nevin v. Tennessee Valley Authority
05A20507
July 31, 2002
.
William R. Nevin,
Complainant,
v.
Glenn L. McCullough, Jr.,
Chairman,
Tennessee Valley Authority,
Agency.
Request No. 05A20507
Appeal No. 01992795
Agency No. 0520-97167
DECISION ON REQUEST FOR RECONSIDERATION
On March 11, 2002, William R. Nevin (complainant) timely initiated a
request to the Equal Employment Opportunity Commission (the Commission or
EEOC) to reconsider the decision in William R. Nevin v. Tennessee Valley
Authority, EEOC Appeal No. 01992795 (February 14, 2002). EEOC regulations
provide that the Commissioners may, in their discretion, reconsider
any previous Commission decision. 29 C.F.R. � 1614.405(b). The party
requesting reconsideration must submit written argument or evidence
which tends to establish one or more of the following two criteria:
the appellate decision involved a clearly erroneous interpretation of
material fact or law; or the decision will have a substantial impact
on the policies, practices or operations of the agency. Id. For the
reasons set forth herein, complainant's request is DENIED.
BACKGROUND
In the previous decision, the Commission affirmed the agency's FAD, in
which the agency found that the complainant had failed to prove that
he had been subjected to unlawful discrimination in violation of the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq., when, on February 24, 1997, he was not selected
to fill a vacant Technical Services Analyst (TSA), SD-2 position.
The Commission found in its decision on the appeal that the complainant
had presented the agency with a claim of unlawful disparate treatment
based upon his age (fifty-one years old at the time of the nonselection),
and that he established a prima facie case of age discrimination as to
that claim. The Commission also found, however, that the complainant
had failed to present sufficient evidence to prove that the agency's
articulated legitimate, nondiscriminatory reasons for his nonselection
were pretextual, or that his age actually played a role in the agency's
decisionmaking process and had a determinative influence on the outcome
of that process. We also noted, in a footnote, that the complainant had,
for the first time on appeal, raised a claim of disparate impact regarding
the nonselection. We stated that, because the complainant had failed to
present this argument to the agency prior to his appeal to the Commission,
we declined to address that claim. Nevin v. Tennessee Valley Auth.,
EEOC Appeal No. 01992795 (Feb. 14, 2002), at n.2.
In his request for reconsideration, the complainant renews his
previously-presented disparate treatment claims, asserting that the
evidence of record supports those claims. The complainant asserts that
his initial sworn statement, in combination with the exhibits he presented
through the agency's Investigative Report, are sufficient to show that
he was subjected to age discrimination.<1> However, we do not agree
that the complainant's reiteration of his disparate treatment arguments
is sufficient to establish that the previous decision involved a clearly
erroneous interpretation of material fact or law regarding his disparate
treatment claim.
Our reexamination of the record on appeal reveals that complainant
is correct that he did previously raise a disparate impact claim to
the agency, and that he presented statistical evidence in support
of that claim. However, we do not find that the complainant has
proven his case. As an initial matter, we note that a complainant may
proceed on a disparate impact theory in order to establish a claim of
discrimination under the ADEA. Geller v. Markham, 635 F.2d 1027 (2d
Cir. 1980), cert. denied, 451 U.S. 945 (1981); Van De Car v. Department
of Veterans Affairs, EEOC Appeal No. 01971656 (Aug. 17, 2000); Parker
v. Department of the Navy, EEOC Request No. 05970486 (Mar. 25, 1999).
In general, to establish a prima facie case of disparate impact, the
complainant must show that an agency practice or policy, while neutral
on its face, disproportionately impacted members of the protected class.
This is demonstrated through the presentation of statistical evidence
that establishes a statistical disparity that is linked to the challenged
practice or policy. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994
(1988) (the complainant must present �statistical evidence of a kind and
degree sufficient to show that the practice in question has caused the
exclusion�). Specifically, complainant must: (1) identify the specific
practice or practices challenged; (2) show statistical disparities;
and (3) show that the disparity is linked to the challenged practice
or policy. Id. The burden is on the complainant to show that �the
facially neutral standard in question affects those individuals [within
the protected group] in a significantly discriminatory pattern.� Dothard
v. Rawlinson, 433 U.S. 321, 329 (1977); see also Gaines v. Department
of the Navy, EEOC Petition No. 03990119 (Aug. 31, 2000).
The complainant contends that the agency's reorganization efforts,
through the creation of the TSA position at issue and the use of interview
questions which were biased against the protected group of persons age
fifty or older, resulted in an unlawful disparate impact upon employees in
that age category. Our review of the pertinent statistical information
reveals that nineteen of the twenty-five interviewees were age forty
or older, and, of the thirteen selectees, ten were age forty or older.
We are therefore unpersuaded that the statistical evidence regarding
the age of the individuals selected for the TSA positions displays
a significant pattern of discrimination in violation of the ADEA.
This is because, despite the complainant's attempt to identify the
protected class in this case as interviewees over the age of fifty,
the ADEA, by its express language, protects persons age forty or older,
and therefore includes in the protected class the vast majority of the
interviewees and selectees for the TSA position.
Accordingly, we conclude that the complainant has failed to carry his
burden of establishing a prima facie case of disparate impact by showing
that the agency's selection process affected persons in the complainant's
protected class, as defined by the ADEA, in a significantly discriminatory
pattern. Therefore, he has failed to establish that the prior Commission
decision on this matter involved a clearly erroneous interpretation of
a material fact.
In conclusion, after a review of complainant's request for
reconsideration, the previous decision, and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. � 1614.405(b), and it is the decision of the Commission to
deny the request. The decision in EEOC Appeal No. 01992795 remains
the Commission's final decision. There is no further right of
administrative appeal on the decision of the Commission on this request
for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
July 31, 2002
Date
1 The complainant also expressed his concern
over the fact that �no investigation of the discrepancies between sworn
statements from [himself] and selection panel members has been conducted
to determine whom is telling the truth.� We note that the record
indicates that the complainant was presented with the opportunity to elect
to present his complaint in a hearing before an EEOC Administrative Judge,
where he would have had the ability to present evidence, present his
own witnesses, cross-examine witnesses presented by the agency, and,
importantly, give the assigned Administrative Judge the opportunity
to make credibility determinations regarding conflicting testimony.
The complainant declined this opportunity, and requested a final agency
decision without a hearing.