The EEOC found race and sex discrimination, as well as reprisal, in Thirlkill v. Tennessee Valley Authority, Appeal No. 0120121029 (June 6, 2012). Thirlkill was a level 3 electrician and temporary electrical instructor in the TVA’s Browns Ferry Nuclear Plant in Decatur, Alabama. On February 9, 2011, Thirlkill learned that the agency did not select him, nor interview him for one of four maintenance specialist nuclear (electrical planner) positions. Thirlkill filed his formal EEO complaint on March 26, 2011.

During the EEO investigation, Thirlkill argued that the agency had historically never employed African-American males as electrical planners and had denied African-American males the same opportunities that it provided to white males and females. Moreover, for the maintenance specialist nuclear position that was the subject of Thirlkill’s EEO complaint, none of the four African-American males who applied for the position was offered an interview, and four white males were eventually selected for the positions.

During the investigation, Thirlkill pointed to his impressive litany of credentials and to the fact that he possessed credentials that went above and beyond the credentials possessed by the four selectees. For example, Thirlkill possessed a specialized electrician’s license, two associates’ degrees, and 19 years of electrical experience, 17 years of which were in the discipline of maintenance. One of the selectees had only a high school diploma and no associates’ degrees, even in the face of education being touted as a requirement for the position. And two of the four selectees had been trained by Thirlkill and did not possess his years of experience.

Management explained that in choosing the four selectees, a matrix was used to score the applicants, and that this matrix was developed solely by the planning organization superintendent at the Browns Ferry Nuclear Plant. The cutoff score for interviews on the matrix, and the number of individuals interviewed, was also determined solely by the superintendent. Although Thirlkill did not make the cutoff on the matrix, one of the four also missed the cutoff on the matrix. The agency maintained that it made the selection decisions solely based upon the objective standard in the matrix. However, the record developed during the EEO investigation revealed that the agency only credited the complainant with five to 10 years of his 19 years of experience. The agency also did not credit Thirlkill with his specialized license, or his two associates’ degrees.

The EEOC found that the agency could not explain why it deviated from the its standard planner candidate assessment instrument or why Thirlkill was rated in a manner that failed to credit him with his actual years of service, education, and specialized licenses. It concluded that the matrix was based on subjective criteria which denied Thirlkill a fair opportunity to compete based upon his qualifications. The EEOC had previously decided that although subjective criteria are permissible for agencies to use in selecting applicants for positions, it can often be used as a "convenience pretext for unlawful discrimination.’ the eeoc concluded that the complainant’s qualifications were "observably superior’ to the other selectees’ qualifications, and that the agency’s defense of its selection process was simply a pretext for discrimination.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

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