EEOC Appeal 2019005077

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Werner K.,1
Complainant,
v.
Bill Johnson,
President and Chief Executive Officer,
Tennessee Valley Authority,
Agency.
Appeal No. 2019005077
Agency No. TVA-2018-0028
DECISION
On July 31, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s June 25, 2019 final decision concerning an equal employment opportunity (EEO)
complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Senior Instrument Mechanic Foreman at the
Agency’s Instrumentation and Control (I&C) group, Brown Ferry Nuclear Plant in Athens,
Alabama.
On March 21, 2018, Complainant initiated EEO Counselor contact. Informal efforts to resolve his
concerns were unsuccessful.
On July 10, 2018, Complainant filed instant formal complaint. 	Complainant claimed that the
Agency discriminated against him based on race (African-American) and color (Black) when, from
2013 until present, he was compensated less than white employees performing similar Lead
Foreman job duties.
1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.

2019005077	2
After the investigation of the formal complaint, the Agency provided Complainant with a copy of
the report of investigation and notice of the right to request a hearing before an EEOC
Administrative Judge. 	In accordance with Complainant’s request, the Agency issued a final
decision on January 17, 2018, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.
The record reflects that the Agency initially dismissed the formal complaint for untimely EEO
Counselor contact for untimely EEO counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2).
However, the Agency went on to address the merits of the claim, finding no discrimination.
The instant appeal followed. Complainant did not submit a brief on appeal.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie case of discrimination by presenting facts which, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. 	See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). 	The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. 	See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted based on a prohibited reason. See St. Mary’s Honor Center v.
Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists
of determining the existence of a prima facie case, need not be followed in all cases. Where the
agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the
factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the
ultimate issue of whether complainant has shown by a preponderance of the evidence that the
agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC
Petition No. 03900056 (May 31, 1990).
Complainant was employed as a Senior Instrument Mechanic Foreman at the Agency’s I&C group,
Brown Ferry Nuclear Plant in Athens, Alabama.
Complainant became a temporary foreman in 2013, and later became a permanent foreman over a
crew on the midnight shift. Complainant alleged that three named white comparators were also
foreman responsible for the crew. However, in the 2006-2008, the three comparators were taken
off of the regular shift work and served as Lead Foreman in supervisory positions during the startup
of Unit 1. The record reflects that six other employees have served as Lead Foreman on special
projects during outages or as the Maintenance Training Manager.

2019005077	3
The Agency determined that that aside from the use of Lead Foreman during the start-up in 2006-
2008 and outages, there had been no other lead foreman in the I&C shop. The Agency also noted
in his affidavit, Complainant admitted that he has twice served as a Lead Foreman during outages.
Complainant asserted that he was discriminated against when from 2013 until present, he was
compensated less than white employees performing similar Lead Foreman job duties.
Complainant further claimed that on January 25, 2018, he had a conversation with the
Superintendent. Specifically, Complainant stated that he did not want to participate in his current
working environment any longer “being under compensated. I was assuming supervisor’s roles
(that had been vacated), however not acquiring Lead Foreman rate. 	The MIG Superintendent,
resolution was to pay a Dual-Rate (assistant) the same rate as I. After some research, all Foreman
that assumed supervisor’s roles, have been compensated Lead Foreman pay. All of these Foreman
have been White. In addition, all the Dual Rates under my guidance have been White.”
The Superintendent (Caucasian, white) explained that that a lead foreman “is actually a direct
report. In other words, he’s actually responsible over people just like a supervisor is, it’s just in a
foreman position. In other words, like, I hate to say it, but [Complainant], I put him as lead foreman
over a BHI contract crew coming in this last outage.” He stated that the crew reported directly to
Complainant and he was responsible for doing all the observations, responsible for doing if they
had any punishment needed, it would have to be brought up to the maintenance direct report above
him… what punishment or whatever they needed the guys weren’t actually doing.” He also noted
that the foreman position is similar to a supervisor position.
Further, the superintendent stated there is a pay difference between a lead foreman and a regular
foreman. Specifically, he stated he believed it is 18% or 10% and “it’s actually higher than the
supervisor is paid.” He noted that he selected Complainant as one of the lead foremen for the last
outage. 	The superintendent acknowledged that he was not aware that from October 2018 to
November 2018, Complainant assumed extra duties in the form of a supervisor or lead foreman.
Specifically, the Superintendent stated that he was not aware of Complainant assuming extra duties
that would classify as a supervisor. He noted that Complainant does not attend meetings but he
“did update the schedule, which you know, I’m not sure who that falls under. 	I know we do it
quite a bit, but we have foremen that do it, also.” He stated that Complainant and other foreman
may have been doing some other duties which allowed them to not be able to do their walk downs
so they had to pay duals rates as well as other foremen working that work the evening shift “were
just helping out.”
The I&C Supervisor (Caucasian, white) stated that he previously worked with Complainant and
was his supervisor on the midnight shift from the end of 2013 to end of 2014 timeframe. 	He
explained that Complainant is responsible for the Ready-Ready process in which “he’s supposed
to walk down the jobs, make sure they’re squared away. He does handout work; divide up to crew;
just do assisting schedule adherence.” The supervisor stated that he was not aware of Complainant
assuming additional duties.

2019005077	4
However, the supervisor recalled when Complainant and the evening foreman were paying dual
rates while they were on shift to perform walk downs. He maintains that this was not a malicious
action by Complainant and the evening foreman but an opportunity to pay the dual rates additional
money.
With respect to Complainant’s allegation that he was not compensated when performing lead
foreman duties, the Superintendent of the INT Department stated “the only thing I know about
lead foreman is, I believe - - I think it’s 13 percent over foreman. To the best of my knowledge,
there’s never been a lead foreman in the I&C shop.”
Moreover, the supervisor noted that Complainant was selected as Lead Foreman during the last
outage in October 2018 and November 2018. He explained that Complainant was selected based
on having foreman experience and seniority.
The former Superintendent (Caucasian, white) asserted that Complainant “was never directed or
held accountable for performing any duties other than a foreman.” 	He noted that during the
relevant period, Complainant “never said anything to me or any other supervisor that I’m aware of
that he was performing duties other than a foreman.”
Regarding Complainant’s allegation that he was not compensated when peforming lead foreman
job duties, the former Superintendent explained “a lead foreman, they have more responsibilities
other than - - you know, in addition to a foreman’s responsibilities…we have set up people as lead
foreman when they were responsible for composite crews. That is the only time I’ve ever known
of anyone in I&C Maintenance to be set up as a lead foreman.”
Here, Complainant has failed to prove, by a preponderance of the evidence, that management’s
proffered reasons for its actions were a pretext designed to mask the true discriminatory
motivation. In sum, we conclude Complainant failed to establish that his race or color played any
role in the Agency’s decision to compensate him less than white employees performing similar
Lead Foreman duties.
CONCLUSION
We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.

2019005077	5
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. 	Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 	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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). 	See 29 C.F.R. §
1614.403(g). 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.

2019005077	6
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 Complainant’s Right to File a Civil Action for
the specific time limits).
FOR THE COMMISSION:
______________________________ 	Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
June 25, 2020
Date