Seay v. TVA

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 Seay v. Tennessee Valley Authority et al. No. 01-5953

ELECTRONIC CITATION: 2003 FED App. 0275P (6th Cir.)

File Name: 03a0275p.06 _________________

COUNSEL

UNITED STATES COURT OF APPEALS

ARGUED: John R. Benn, Sheffield, Alabama, for

FOR THE SIXTH CIRCUIT Appellant. Barbara S. Maxwell, TENNESSEE VALLEY

_________________ AUTHORITY, Knoxville, Tennessee, for Appellees.

ON BRIEF: John R. Benn, Sheffield, Alabama, for

CLARENCE SEAY, JR., X Appellant. Barbara S. Maxwell, Thomas F. Fine, John E.

Plaintiff-Appellant,- Slater, Dillis D. Freeman, TENNESSEE VALLEY

- AUTHORITY, Knoxville, Tennessee, for Appellees.

- No. 01-5953

v. - _________________

>

, OPINION

TENNESSEE VALLEY - _________________

AUTHORITY ; CRAVEN -

CROWELL , - CLAY, Circuit Judge. Plaintiff Clarence Seay, Jr. appeals

Defendants-Appellees. - from the district court’s grant of summary judgment, on all

N counts of Plaintiff’s amended complaint, in favor of

Defendants Tennessee Valley Authority and Craven Crowell

Appeal from the United States District Court (collectively “TVA”). The lawsuit concerned certain adverse

for the Eastern District of Tennessee at Chattanooga. actions TVA took against Plaintiff which Plaintiff alleged

No. 00-00168—R. Allan Edgar, Chief District Judge. constituted violations of Title VII of the Civil Rights Act of

1964, 42 U.S.C. §§ 2000e et seq., and various other statutes

Argued: December 6, 2002 and policies. Plaintiff contends that genuine issues of

material fact remain for this case to proceed to trial, and that

Decided and Filed: August 6, 2003 the district court erred in denying Plaintiff’s request to strike

evidentiary submissions from TVA’s reply briefs. As

Before: COLE and CLAY, Circuit Judges; discussed below, we AFFIRM in part and REVERSE in part

BERTELSMAN, Senior District Judge.* the district court’s judgment.

I

A. Procedural Background

On November 17, 1999, Plaintiff filed a 131-count

complaint with the United States District Court for the

* Northern District of Alabama, which alleged, in pertinent

The Honorable William O. Bertelsman, Senior United States District

Judge for the Eastern District of Kentucky, sitting by designation. part, the following: (1) wrongful non-selection relating to

1

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forty-three posted vacant positions due to race discrimination strike the evidentiary submissions, and the district court

and retaliation, in violation of Title VII; (2) violation of denied this request.

TVA’s hiring and retention policy for disabled veterans;

(3) violation of Supplementary Agreement 10 of TVA’s On April 2, 2001, TVA filed its fourth motion for partial

collective bargaining agreement; (4) violation of Plaintiff’s summary judgment. Plaintiff filed papers in opposition on

procedural and substantive reduction-in-force (“RIF”) rights; April 26, 2001. On May 4, 2001, TVA submitted an

(5) wrongful adverse action (suspension); and (6) racially amended fourth motion, which argued, in part, that the district

discriminatory suspension. The district court for the Northern court lacked subject matter jurisdiction over counts 126, 127,

District of Alabama dismissed with prejudice forty-eight 130, and 131 of Plaintiff’s amended complaint. Plaintiff filed

counts of Plaintiff’s complaint and transferred the case to the a motion to strike TVA’s amended motion, arguing that it was

Eastern District of Tennessee. Subsequent to the transfer, not timely. The district court denied this motion.

Plaintiff filed an amended complaint.

On May 29, 2001, the district court granted summary

TVA filed four motions for partial summary judgment, judgment in favor of TVA on all of the remaining counts in

which collectively sought to dismiss with prejudice all Plaintiff’s amended complaint. Plaintiff then filed a motion

remaining counts in Plaintiff’s amended complaint. The first for reconsideration or clarification, which the district court

motion sought to dismiss fifty-nine counts, and Plaintiff filed also denied. This timely appeal followed.

responsive papers in opposition on March 15, 2001. TVA

then filed a reply brief on March 26, 2001. TVA attached to B. Substantive History

the reply brief some additional evidentiary submissions.

Three days later, on March 29, 2001, the district court issued Plaintiff, an African American male, was employed with

an order granting summary judgment to TVA on all fifty-nine TVA from April of 1977 to September 26, 1997. At the time

counts. The following day Plaintiff filed a motion to strike of his termination, he was a Safety Specialist in TVA’s Labor

the evidentiary submissions attached to TVA’s reply brief, and Safety organization. He had a grade level of SD-4 and

which the district court denied. was a 60% disabled veteran. The gravamen of Plaintiff’s

amended complaint concerns three events during his

On March 26, TVA filed its second motion for partial employment with TVA: his sixty-day suspension, his

summary judgment; Plaintiff filed papers in opposition on termination pursuant to a RIF, and his non-selection for forty-

April 20, 2001, and TVA filed a reply brief on April 25, 2001. three vacant positions to which he applied after he was given

Plaintiff did not challenge any submissions in connection notice of his RIF.

with this sequence.

1. Sixty-Day Suspension

On March 30, 2001 TVA filed its third motion for partial

summary judgment. Plaintiff filed his response on April 26, On February 10 and 11, 1997, Plaintiff was assigned to

2001, and on May 2, 2001 TVA filed a reply brief, which perform a safety inspection at TVA’s Raccoon Mountain

included new declarations. Attached to the declarations were Pumped Storage Plant (“Raccoon Mountain”). Although the

exhibits containing evidentiary material that had not work would not begin until Monday, February 10, 1997,

previously been submitted by TVA, although the evidentiary because of the traveling distance and pursuant to custom at

material had been submitted by Plaintiff. Plaintiff moved to TVA, Plaintiff checked out a TVA vehicle on Friday,

No. 01-5953 Seay v. Tennessee Valley Authority et al. 5 6 Seay v. Tennessee Valley Authority et al. No. 01-5953

February 7, 1997, and drove it to his residence in notified on July 25, 1997 that he would be terminated

Chattanooga, Tennessee. On Monday, February 10, Plaintiff pursuant to the RIF effective September 26, 1997.

drove the vehicle to Raccoon Mountain, and after finishing

work he drove the vehicle to Miles Law School in After learning of his impending RIF termination, Plaintiff

Birmingham, Alabama, some 139 miles away, where he was contacted an EO counselor and alleged that he was being

attending night classes. He repeated this process on the terminated due to race discrimination and retaliation for prior

following day, February 11, 1997. Plaintiff admitted to EOC activity. Plaintiff also applied for approximately forty-

having used the vehicle for unofficial and personal purposes three vacant job postings at TVA, but he was not selected for

of attending the law school classes on those two nights. He any of the positions. Plaintiff filed an EEO complaint with

also acknowledged that he had not received permission to use TVA’s EOC staff for each of these non-selections.

the vehicle for this purpose. The two trips resulted in about

500 additional miles of usage for the TVA vehicle. Plaintiff’s On September 26, 1997, Plaintiff was terminated from

conduct was discovered, and the matter was referred to the TVA pursuant to the RIF. Although he was the highest-listed

Office of the Inspector General (OIG) for an investigation. employee for retention purposes (i.e., he would be the last

After OIG completed its investigation into the matter, terminated within his group), he was still terminated because

Plaintiff’s supervisor James Johnson issued a Notice of the entire department was eliminated in the reorganization.

Proposal recommending that Plaintiff receive a sixty-day

suspension because he misused the TVA vehicle “on two Plaintiff filed another EEO complaint on November 22,

separate occasions.” (J.A. at 493.) Subsequently, Johnson’s 1997 with TVA’s EOC staff. This complaint alleged that he

supervisor, Eugene Walters, issued a Notice of Decision, was being terminated due to race discrimination. It also

informing Plaintiff of his sixty-day suspension for twice challenged whether the termination took into consideration

misusing a TVA vehicle. After receiving the notice, Plaintiff his rights as a disabled veteran and whether the termination

contacted one of TVA’s Equal Opportunity (EO) counselors. was conducted in accordance with TVA’s collective

He then filed a formal administrative charge, or Equal bargaining agreement. Because the complaint involved

Employment Opportunity (EEO) complaint, with TVA’s discrimination claims as well as nondiscrimination claims, the

Equal Opportunity Compliance (EOC) staff, alleging that his EOC staff accepted Plaintiff’s complaint as a “mixed case”

suspension was due to racial discrimination and retaliation for complaint, pursuant to 5 U.S.C. § 7702 and 29 C.F.R.

prior EOC activity. § 1614.302.1 Before the EOC director issued a final decision,

but more than 120 days after the EOC staff received the

2. Plaintiff’s RIF and Non-selections complaint, Plaintiff filed the instant civil action.

In February of 1997, TVA obtained an outside consultant, II

Scott Madden, to conduct a workforce competitiveness study

of several of TVA’s organizations. Pursuant to Madden’s We review a district court’s grant of summary judgment de

recommendations, TVA decided to undertake a reorganization novo. Holloway v. Brush, 220 F.3d 767, 772 (6th Cir. 2000)

of four departments, resulting in numerous RIFs throughout (en banc). Summary judgment is only appropriate where “the

those departments. As part of the reorganization, all of the

Safety Specialist positions were eliminated. Plaintiff was

1

For a definitio n of “mixed case” comp laint, see Part IV.A , infra.

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pleadings, depositions, answers to interrogatories, and production shifts back to the plaintiff to show that the

admissions on file, together with the affidavits, if any, show defendant’s proffered reason is a pretext for discrimination.

that there is no genuine issue as to any material fact.” Fed. R. Id. (citing McDonnell Douglas, 411 U.S. at 804). “A plaintiff

Civ. P. 56. The mere existence of some alleged factual can demonstrate pretext by showing that the proffered reason

dispute in the case will not defeat an otherwise properly (1) has no basis in fact, (2) did not actually motivate the

supported summary judgment motion. Anderson v. Liberty defendant’s challenged conduct, or (3) was insufficient to

Lobby, Inc., 477 U.S. 242, 247-48 (1986). warrant the challenged conduct.” Hopson v. DaimlerChrysler

Corp., 306 F.3d 427, 434 (6th Cir. 2002) (quoting Dews v.

III A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000) (internal

citation and quotation marks omitted)).

On appeal, Plaintiff challenges the district court’s dismissal

of his claims involving non-selections for the positions of A. Count 15: The Contract Manager Position

(1) Contract Manager, (2) Project Manager, Safety, and (3)

Methods Team Specialist (Plant Operations). The district On appeal, there is no dispute that Plaintiff was a member

court dismissed these claims, finding that Plaintiff failed to of a protected class (African American), that he applied for

establish a prima facie case of racial discrimination regarding the Contract Manager position, that he did not get an

any of the non-selections. interview or an offer, and that the job went to a white person

instead. However, the district court found that Plaintiff had

To avoid a grant of summary judgment on a Title VII failed to establish that he was qualified for the position. The

claim, a plaintiff must either provide direct evidence of job posting set forth the following minimum requirements for

discrimination or establish a prima facie case, which creates the Contract Manager position:

an inference of discrimination based on circumstantial

evidence. Talley v. Bravo Pitino Rest., Ltd., 61 F.3d 1241, Ability to provide leadership, to coach people toward

1248 (6th Cir. 1995) (citations omitted). A prima facie case accomplishment of group objectives. To manage change

requires a plaintiff to show (1) that he is a member of a occurring in a rapidly changing environment. Work

protected class; (2) that he applied for, and did not receive, a independently with minimal or no supervision.

job; (3) that he was qualified for the job; and (4) that a Extensive background in areas of supply chain mgt &

similarly-situated person who was not in the plaintiff’s skills in negotiation. Oral & written communication.

protected class received the job. Thurman v. Yellow Freight Process improvement & financial analysis. B.S. degree

Sys., Inc., 90 F.3d 1160, 1166 (6th Cir. 1996); see also Tex. in business administration, or related field, or equivalent

Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54 & experience in an industrial environment, including

n.6 (1981) (quoting McDonnell Douglas Corp. v. Green, 411 managerial experience. Knowledge of supply chain

U.S. 792, 802 (1973)). principles & practices, TVA business policies, laws,

regulations, executive orders, & fed guidelines governing

Once the plaintiff establishes a prima facie case, the burden TVA’s contracting.

shifts to the defendant to offer a legitimate, nondiscriminatory

reason for the adverse employment action at issue. Burdine, (J.A. at 1388.) The main point of contention between the

450 U.S. at 253 (citing McDonnell Douglas, 411 U.S. at 802). parties is the requirement of “[e]xtensive background in areas

If the defendant satisfies that burden, then the burden of of supply chain [management and] skills in negotiation, oral

No. 01-5953 Seay v. Tennessee Valley Authority et al. 9 10 Seay v. Tennessee Valley Authority et al. No. 01-5953

[and] written communication.” TVA also notes that John Moreover, the record demonstrates that the successful

Opp, the selecting manager for this position, submitted a candidate, Roy Jones, possessed the requisite work experience

sworn statement that his “interviews were directed to those through his position as a purchasing agent at TVA and met

people with the most procurement-related experience that had the other minimum criteria. Therefore, we are not persuaded

been a purchasing agent or contract manager with relevant that Plaintiff established his prima facie case for his non-

prior experience.” (J.A. at 250). TVA argues that Plaintiff’s selection claim regarding the Contract Manager position.

application and resume did not demonstrate any experience in

procurement or supply chain management. TVA also argues B. Count 75: The Project Manager, Safety Position

that Plaintiff’s own deposition testimony, in which he stated

that he had never been a purchasing agent or contract manager Next, Plaintiff challenges the dismissal of his non-selection

while employed at TVA and had never worked under Opp’s claim for a Project Manager, Safety Position in the Training

supervision, refutes his present contention that he met the and Safety department. The district court, in granting

criteria. Plaintiff contests this by pointing to his application, summary judgment to TVA on this claim, determined that

which included a statement from his immediate supervisor Plaintiff failed to establish a prima facie case of

about his then-current job responsibilities: discrimination with respect to this claim because he was not

qualified for the position for which he applied. The minimum

Coordinated the daily order and distribution processing, qualifications listed in the job posting were:

tracking, and security of the audiovisual library.

Planned, coordinated, and implemented procurement of Bachelors degree in industrial safety or equivalent

new audiovisuals with the year budget. Upgraded the experience and six (6) years of comprehensive loss

technical quality of audiovisuals to state-of-the-art control experience in power plant operations and

through procurement practices or replacement maintenance safety/security process integration. Strong

agreements with production companies. communication and analytical skills. Must have

successfully demonstrated the defined competencies of

(J.A. at 1395 (emphasis added).) Although this statement r e l a t i o ns h i p b u i l d i n g , s e r v i c e a t t i t u d e ,

supports some background in procurement activities, Plaintiff flexibility/adaptability, initiative/independence,

has not come forward with any evidence that he has had any creativity/innovation, customer focus continuous

supply chain management experience. The closest possibility improvement, technical knowledge, leadership, and

on his resume was his job as a Material Control Storekeeper organization and planning.

in the Army from 1969 to 1970. Plaintiff described his work

in this position as “Responsible for inventory for all stores on (J.A. at 1413.) Plaintiff applied for the position but was

plant site.” (J.A. at 1393.) This description is vague and neither selected nor granted an interview. Kenneth S.

makes no mention of negotiation. Although Plaintiff’s McVay, Industrial Safety Manager of Programs for the Fossil

deposition testimony shed more light on what “[r]esponsible Power Group, testified at his deposition that because he

for inventory” meant, Opp had only the descriptions on received over forty applications for the Project Manager,

Plaintiff’s application and resume at his disposal, and it was Safety position, he decided to interview only those applicants

not Opp’s responsibility to discern all of Plaintiff’s work with supervisory or managerial experience, which Plaintiff

experience from the brief descriptions on his application and apparently lacked. McVay also testified that Plaintiff lacked

resume.

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the necessary six years of loss-control experience in a power employer used in selecting applicants for the posted job. See

plant. Wilburn v. Dial Corp., 724 F. Supp. 521, 528-29 (W.D. Tenn.

1989) (denying summary judgment where a black female

At issue on appeal are the third and fourth prongs of the plaintiff was refused a promotion because she lacked the

prima facie test, as well as TVA’s asserted legitimate requisite managerial experience, but the white male who

explanation for not selecting Plaintiff. Specifically, the received the promotion lacked the educational requirement);

parties dispute the following: (1) whether Plaintiff possessed 1 LEX K. LARSON, EMPLOYMENT DISCRIMINATION § 8.02[3],

the minimum qualifications (specifically, six years of loss at 8-29 (2d ed. 2003) (“A court may be inclined not to take

control experience in power plant operations); (2) whether the the employer’s stated qualifications seriously when in fact the

selectees possessed the minimum qualifications; (3) whether employer does not consistently adhere to those stated

Plaintiff and the selectees were “similarly-situated,” and qualifications when making employment decisions.”). When

(4) whether TVA’s decision to interview only those neither the plaintiff nor the selectee meets all the stated

applicants with management experience constituted a criteria, the qualified prong is satisfied for summary judgment

legitimate nondiscriminatory reason for Plaintiff’s non- purposes, because a genuine issue of material fact arises as to

selection. whether the posted standards actually dictated whether

Plaintiff was qualified.2

As to the third prong (i.e., Plaintiff’s qualifications),

McVay’s testimony appears to have conceded that Plaintiff Here, Plaintiff points to two of the five selectees, Henry

had “six years of various levels of safety experience.” (J.A. Ziegler and Charles Proffitt, and argues that they did not meet

at 1303.) However, the posted criteria for the position the posted qualifications for the position either. Plaintiff

required the loss control experience to be obtained in power observes that Ziegler did not possess a bachelor’s degree in

plant operations. A review of Plaintiff’s resume and industrial safety, which is listed among the posted minimum

application does not reveal any references to “power plant” or requirements, whereas Plaintiff did possess such a degree.

any sort of plant. Therefore, Plaintiff has not established that Ziegler instead possessed a bachelor’s degree in industrial

he was qualified for the job based on TVA’s posted engineering. Plaintiff also notes that Proffitt possessed no

qualifications. college degree at all, but only a high school education. He

further argues that Proffitt lacked the six years of health and

This does not end the inquiry, however, because although safety experience because he was only an electrician. TVA

posted minimum requirements often dictate which applicants counters that Ziegler’s industrial engineering degree

are qualified and which are not, this does not always hold constituted an equivalent degree, and that although Proffitt

true. As the Supreme Court has repeatedly emphasized, “the did not have a college degree and was a trained electrician, he

precise requirements of a prima facie case can vary depending possessed equivalent experience because, in addition to his

on the context and were ‘never intended to be rigid,

mechanized, or ritualistic.’” Swierkiewicz v. Sorema N. A.,

534 U.S. 506, 512 (2002) (quoting Furnco Constr. Corp. v. 2

Of course, an emplo yment discrimination p laintiff does not

Waters, 438 U.S. 567, 577 (1978)). Thus, where a selectee autom atically survive summ ary jud gment whenever the better-treated

does not appear to meet the posted qualifications, a genuine employee fails to possess all stated qualifications. For instance, if neither

issue of material fact may exist as to whether the posted cand idate meets all stated criteria, but it is apparent from the record that

minimum requirements actually dictated the criteria the the selectee is obviously better qualified than the plaintiff, then summary

judgment would be appropriate.

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electrician position, he was a Health and Safety Manager at had any loss control experience prior to 1992, McVay replied,

TVA’s Gallatin Steam Plant for the twelve years just prior to “I can’t do that.” (J.A. at 1323.) After 1992, Plaintiff points

his selection, i.e., from 1985 to 1997. out, and TVA does not disagree, that Proffitt was officially

employed as a Maintenance Electrician. McVay’s testimony

We are not persuaded by TVA’s arguments. Based on the creates two problems. First, it tends to contradict TVA’s

minimum qualifications posted in the job announcement, representation that Proffitt possessed twelve (or even six)

Ziegler was required either to hold a bachelor’s degree in years of health and safety experience prior to receiving the

industrial safety or to possess equivalent experience. TVA Project Manager, Safety position in 1997. Second, if Proffitt

argues that Ziegler possessed an equivalent degree, but that did not begin to acquire health and safety experience until

is not what TVA’s posted minimum qualifications stated. 1992, then it would have been impossible for him to have

Even if the language of the posting could (or should) be completed six years of loss control experience by the time he

interpreted in such a manner, it is unclear on this record that received the position in 1997.

a degree in industrial engineering is equivalent to a degree in

industrial safety. This seems to be particularly critical here, The record does not support TVA’s contention that Proffitt

where the position is for a manager in safety, not engineering. and Ziegler met the minimum qualifications for the Project

Manager, Safety position as advertised in the job posting.

Moreover, it is unclear from the record that Proffitt Thus, a genuine issue of material fact remains as to whether

possessed twelve years of health and safety experience. All those posted qualifications served as the actual guidelines by

of the early experience listed on his resume relates to which applicants’ qualifications were determined. Therefore,

electrician work. The first mention of health and safety is on Plaintiff has satisfied the third prong of his prima facie case,

page two of the resume, under “September 1985-Present,” for purposes of summary judgment.

where it states that Proffitt maintained dual roles as a

maintenance electrician and acting manager of health and As to the fourth prong, it is not apparent from the record

safety. However, under this entry the resume lists no health that selectees Proffitt and Ziegler were better qualified than

and safety-related experience. Instead it lists the following: Plaintiff for the Project Manager, Safety position. The record

“Maintained all plant electrical equipment”; “Maintained does not support TVA’s representations that these two

161KV switchyard & transformer yard”; and “Maintained all selectees possessed the requisite degree or the equivalent

yard operations electrical equipment.” (J.A. at 1021.) Page experience, or that Proffitt possessed six years of loss control

four of the resume states, among other things, “Experience: experience, the lack of which supposedly doomed Plaintiff’s

Health and Safety Manager,” and lists some accompanying application. In other words, Proffitt and Ziegler were

responsibilities. (J.A. at 1023.) However, this listing similarly-situated to Plaintiff in that they possessed

includes no dates to indicate at what point Proffitt served as qualifications that, based on the record, appear to be equal to

a health and safety manager. And while the resume lists a or less than Plaintiff’s qualifications. Therefore, we find that

number of teams, it does not indicate how long Proffitt served Plaintiff has satisfied the fourth prong of his prima facie case.

on any of those teams for purposes of determining whether he

had six years of health and safety experience. Because Plaintiff has met his prima facie burden for

purposes of summary judgment, we now consider TVA’s

McVay’s deposition testimony has further confused the argument that it possessed a legitimate nondiscriminatory

issue. When asked to point on the resume to where Proffitt reason for not hiring Plaintiff. Specifically, TVA argues that

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McVay’s decision to reduce the applicant pool by considering tolling principles. We agree with Plaintiff and therefore

only the applicants with management experience (a reverse the district court’s dismissal of this claim.

qualification not listed among the stated criteria in the job

posting) constituted a legitimate nondiscriminatory reason for The facts demonstrate that on November 22, 1997 Plaintiff

Plaintiff’s non-selection. However, we are not persuaded. As filed an EEO complaint regarding his non-selection for this

discussed earlier, when an employer presents a legitimate position. On December 9, 1997, TVA’s EOC organization

nondiscriminatory reason for an adverse employment action, issued a final agency decision (FAD), dismissing Plaintiff’s

the employee must demonstrate that a genuine issue of EEO complaint on the grounds that the Methods Team

material fact exists as to whether the asserted reason is a Specialist position had not been filled. Plaintiff received the

pretext for discrimination. Burdine, 450 U.S. at 253. FAD, which was sent via certified mail, on December 19,

1997, but he did not file a claim regarding this non-selection

In the instant case, TVA’s proffered legitimate explanation in federal court until November 17, 1999.

is insufficient to explain Plaintiff’s non-selection. Hopson,

306 F.3d at 434. If McVay had been seeking a way to reduce In the course of preparing a pre-complaint counseling

his applicant pool, it appears that the obvious first step would report (“PCCR”), Lynn Talley, Manager of Counseling and

have been to eliminate those applicants who did not meet the Analysis in TVA’s EOC organization, asked TVA’s human

stated qualifications before using unstated qualifications to resources department about the status of the job vacancy. The

further eliminate applicants. Yet, selectees Ziegler and human resources department responded by letter dated

Proffitt remained in the applicant pool, despite the fact that December 5, 1997, stating the following:

neither met the stated criteria and despite McVay’s ostensible

need to reduce his large applicant pool. This inconsistency Management made a decision not to fill the PG-8

tends to undermine TVA’s legitimate nondiscriminatory position but to utilize the headcount and budget to further

explanation and raises “an inference [of pretext] that must be develop a current employee in preparation for a site

drawn, at summary judgment, in favor of the nonmovant.” position. Mr. Albert J. Salatka was rotated into this

Wexler v. White’s Furniture, Inc., 317 F.3d 564, 577-78 (6th position at the PG-5 level for the purpose of

Cir. 2003) (en banc). Therefore, we reverse the district development. Once this developmental process is

court’s grant of summary judgment in favor of TVA on Count complete, Mr. Salatka will no longer occupy the

75 and remand the claim for a trial. headcount in the Process Methods organization.

Management will then make a decision as to whether or

C. Count 67: The Methods Team Specialist (Plant not to fill the PG-8 position.

Operations) Position

As indicated above, the position . . . has not been filled;

Next, Plaintiff challenges the dismissal of his claim therefore, no selection has been made. If the position is

concerning his non-selection for the Methods Team Specialist to be filled in the future, it will be re-posted and the

(Plant Operations) position. In dismissing the claim, the selection process completed.

district court concluded that the claim was time-barred and

that equitable tolling did not apply. Plaintiff acknowledges (J.A. at 737.) The FAD indicated that “no one was selected

on appeal that he filed suit late on this claim, but he contends for this position,” that applications . . . were never reviewed

that he was entitled to maintain the suit based on equitable nor any qualifications of candidates ever compared,” and that

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Plaintiff’s allegation of discrimination was therefore Because the parties dispute some of the facts, we review the

“premature.” (J.A. at 201.) Although the FAD mentioned the district court’s denial for an abuse of discretion. Id. We

December 5, 1997 letter from TVA’s human resources consider five factors in determining whether equitable tolling

department, it did not mention the letter’s explanation to the should be allowed: “1) lack of notice of the filing

effect that Salatka had been rotated into the position for requirement; 2) lack of constructive knowledge of the filing

“developmental” purposes. requirement; 3) diligence in pursuing one’s rights; 4) absence

of prejudice to the defendant; and 5) the plaintiff’s

Plaintiff argues that he was entitled to equitable tolling reasonableness [in] remaining ignorant of the particular legal

because TVA purposely withheld the critical information that requirement.” Truitt v. County of Wayne, 148 F.3d 644, 648

Salatka, a white man, had been “given” the job, and that had (6th Cir. 1998) (citing Andrews v. Orr, 851 F.2d 146, 151

Plaintiff known this information he would have filed a lawsuit (6th Cir. 1988)). Regarding the third factor, a plaintiff must

with regard to that non-selection in a timely fashion. TVA demonstrate facts showing his or her diligence in pursuing the

insists that it did not mislead Plaintiff because the job position claim. See Morgan v. Washington Mfg. Co., 660 F.2d 710,

had not been filled, and that the decision to rotate Salatka into 712 (6th Cir. 1981). However, these factors are not exclusive

the position was in the December 5, 1997 letter, of which the bases upon which to apply equitable tolling; thus, the decision

FAD made Plaintiff aware. Thus, TVA argues, Plaintiff to equitably toll the limitations period is made on a case-by-

failed to discover that Salatka was carrying out the duties of base basis. Truitt, 148 F.3d at 648. A district court need not

the position because of his own lack of due diligence. The find that the employer willfully engaged in wrongful conduct

district court agreed with TVA’s interpretation of the facts to allow equitable tolling. See Andrews, 851 F.2d at 151.

and declined to apply equitable tolling. Nevertheless, the doctrine of equitable tolling is restricted and

to be carefully applied. Id. (citations omitted).

A Title VII plaintiff ordinarily must file a civil action

within ninety days of receiving a notice of dismissal and right We find that the district court did abuse its discretion in

to sue from the Equal Employment Opportunity Commission declining to extend equitable tolling to Plaintiff. In this case,

(EEOC). See 42 U.S.C. § 2000e-5(f)(1). However, because the FAD informed Plaintiff that no one received the job and

this requirement is not jurisdictional, a court may apply no applications were reviewed, but it omitted the additional

equitable tolling, which “‘permits a plaintiff to avoid the bar information that Salatka was performing the job duties for

of the statute of limitations if despite all due diligence he is “developmental” purposes. This was the critical information

unable to obtain vital information bearing on the existence of Plaintiff needed to raise his suspicions about TVA’s possible

his claim.’” EEOC v. Ky. State Police Dep’t, 80 F.3d 1086, racially discriminatory motive in rejecting him. Although the

1095 (6th Cir. 1996) (quoting Cada v. Baxter Healthcare FAD referenced the December 5, 1997 letter that mentioned

Corp., 920 F.2d 446, 451 (7th Cir. 1990)). We review a Salatka’s selection, the reality remains that the explanation in

district court’s decision to grant or deny equitable tolling de the FAD was misleading. It implied that nobody took on the

novo when the facts are undisputed or the district court rules, job responsibilities, when in fact TVA placed Salatka in the

as a matter of law, that equitable tolling is not available; in all position, albeit at his current PG-5, rather than PG-8, level.

other circumstances we review for an abuse of discretion. Plaintiff, in reliance, did not pursue his EEO complaint for

Amini v. Oberlin Coll., 259 F.3d 493, 498 (6th Cir. 2001) this non-selection. Because the explanation in the FAD

(quoting Dunlap v. United States, 250 F.3d 1001, 1007 n.2 misrepresented the circumstances surrounding the non-

(6th Cir. 2001)). selection, Plaintiff did not need to request a copy of the

No. 01-5953 Seay v. Tennessee Valley Authority et al. 19 20 Seay v. Tennessee Valley Authority et al. No. 01-5953

December 5, 1997 letter to be reasonably diligent. We 1201.154(b)(2) or may file a civil action as specified at

therefore hold that equitable tolling should have been granted § 1614.310(g), but not both.” Id. § 1614.302(d)(1)(i); see

and that the district court abused its discretion in holding also 5 U.S.C. § 7702(a)(2) (noting that an agency decision on

otherwise. Because neither of the parties discuss the a “mixed case” complaint “shall be a judicially reviewable

underlying merits of this non-selection claim on appeal, we action unless the employee appeals the matter to the

remand Count 67 to the district court for further consideration [MSPB]”). It is not disputed that Plaintiff had a “mixed

of the claim’s merits. case,” that he filed a “mixed case” complaint through TVA’s

EEO process, that a FAD was not issued within 120 days, and

IV that Plaintiff thereafter filed a civil action in the district court.

Plaintiff also challenges his RIF, asserting various theories TVA argues on appeal that after TVA failed to issue the

under which the RIF was wrongful. We address each of his FAD within 120 days, Plaintiff was required to appeal the

claims in connection with the RIF below. action to the MSPB and develop an administrative record for

the district court to review. TVA’s argument is two-fold.

A. Exhaustion of Administrative Remedies First, it notes that Plaintiff, subsequent to filing his civil

action, abandoned his claims of discrimination regarding the

Before addressing the merits of these claims, however, we RIF. TVA argues that once Plaintiff abandoned the

turn our attention to the district court’s dismissal of Counts discrimination claims, his “mixed case” complaint ceased and

126, 127, and 131 on procedural grounds. In so dismissing, the district court lost jurisdiction over the nondiscrimination

the district court stated that Plaintiff had failed to exhaust his claims. For this argument TVA relies on the following text

administrative remedies. On appeal, Plaintiff argues that he from Noble v. Tennessee Valley Authority, 892 F.2d 1013

did comply with the administrative provisions for “mixed (Fed. Cir. 1989) (en banc):

case” complaints by waiting the requisite period of time after

filing an EEO complaint before initiating a civil action in the In this court, Noble has abandoned his discrimination

district court. claims, instead basing his petition solely on the failure of

the MSPB to require the TVA to honor his

We agree with Plaintiff. A “mixed case” complaint “is a reemployment rights under the [Veterans Preference

complaint of employment discrimination filed with a federal Act]. Accordingly, this is no longer a “mixed” case and

agency based on race, color, religion, sex, national origin, age jurisdiction over this matter lies, if at all, in this court.

or handicap related to or stemming from an action that can be

appealed to the Merit Systems Protection Board (MSPB).” Id. at 1014. TVA asserts that Plaintiff instead should have

29 C.F.R. § 1614.302(a)(1). A “mixed case” complaint may brought his nondiscrimination claims regarding his RIF to the

be filed with the employer-agency’s EEO process (pursuant MSPB and then sought judicial review, if necessary, with the

to 29 C.F.R. § 1614.302) or with the MSPB (pursuant to Federal Circuit, where exclusive jurisdiction ostensibly lies in

5 C.F.R. § 1201.151), but not with both. Id. § 1614.302(b). this situation.

If the “mixed case” complaint is filed with the federal agent’s

EEO process and a FAD is not issued within 120 days of the TVA is mistaken. Noble does not stand for the proposition

date of filing, “the complainant may appeal the matter to the that jurisdiction lies only in the Federal Circuit when a

MSPB at any time thereafter as specified at 5 C.F.R. “mixed case” complaint already brought into a federal district

No. 01-5953 Seay v. Tennessee Valley Authority et al. 21 22 Seay v. Tennessee Valley Authority et al. No. 01-5953

court later abandons its discrimination component. Rather, jurisdiction by virtue of the discrimination claim’s subsequent

the quoted excerpt from Noble was referring to the fact that elimination. Afifi v. United States Dep’t of Interior, 924 F.2d

the Federal Circuit lacks jurisdiction to consider “mixed case” 61, 63-64 (4th Cir. 1991).

complaints. See id. at 1014; see also Williams v. Dep’t of

Army, 715 F.2d 1485, 1487 (Fed. Cir. 1983) (en banc). Thus, Unlike Afifi, this case presents no opportunity for a transfer

the Noble court was essentially insuring that it had to the Federal Circuit, because it originated from the EEO

jurisdiction over the appeal before it. And while it is true that process, not the MSPB. However, the reasoning is directly on

the Federal Circuit has exclusive jurisdiction over appeals point: A plaintiff ordinarily should not be punished (by way

from the MSPB’s final decisions as to non-“mixed case” of dismissal) for events unforeseen at the time the case was

complaints, 28 U.S.C. § 1295(a)(9), the present action was filed. Moreover, at no time has either party or the district

not appealed from the MSPB; it was appealed from the EEO court suggested that the discrimination claim Plaintiff

process. Thus, Noble does not control the issue at hand. voluntarily dismissed was a sham or frivolous. Id. at 64.

A review of 29 C.F.R. § 1614.302(a)(1) and (d)(1)(i) TVA also argues that even if subject matter jurisdiction

establishes that a plaintiff may properly bring a “mixed case” existed, Plaintiff waived his rights to pursue Counts 126, 127,

complaint through an employer-agency’s EEO process, and and 131 because he voluntarily abandoned the discrimination

then, if the agency takes no action within 120 days, bring the components of these claims and consequently failed to

“mixed case” complaint to the district court. The language of develop an administrative record at the MSPB. TVA’s

these regulations indicates nothing to the contrary. rationale is that while Title VII claims are reviewed by the

district court de novo, procedural claims are reviewable only

Our view is bolstered by cases from other circuits that have on the record, pursuant to 5 U.S.C. § 7703(c), the statute

considered what happens when a “mixed case” complaint, controlling MSPB procedure.

properly appealed to the district court from the MSPB,

subsequently loses its discrimination component. The D.C. We disagree. On-the-record review is required for

Circuit declined to hold that the subsequent dismissal of the nondiscrimination claims only if the “mixed case” complaint

discrimination portion of a “mixed case” complaint vitiated is appealed from the MSPB. In contrast, a “mixed case”

the district court’s subject matter jurisdiction, reasoning that complaint from an agency’s EEO process, on judicial review

jurisdiction properly existed at the time the “mixed case” at a district court, is reviewed de novo. This can be found

complaint was filed with the district court and that no right in the statutory language regarding appeals: “Nothing

statutory authority exists “suggest[ing] that the jurisdiction in this section shall be construed to affect the right to trial de

thereby conferred on the district court dissolves upon novo under any provision of law described in subsection

dismissal of one claim where original jurisdiction otherwise (a)(1) of this section after a judicially reviewable action,

properly exists.” Evono v. Reno, 216 F.3d 1105, 1109 (D.C. including the decision of an agency under subsection (a)(2)

Cir. 2000). In considering similar procedural facts, the Fourth of this section.” 5 U.S.C. § 7702(e)(3) (emphasis added).

Circuit held that a nondiscrimination claim should not be Subsection (a)(2) refers to “any matter before an agency

dismissed under these circumstances, so long as the which involves (A) any action described in paragraph (1)(A)

discrimination claim was not a “sham or frivolous,” and that of this subsection [i.e., an action which the employee or

the district court had the discretion either to retain the case or applicant may appeal to the MSPB]; and (B) any issue of

to transfer it to the Federal Circuit, which had attained discrimination prohibited under any provision of law

No. 01-5953 Seay v. Tennessee Valley Authority et al. 23 24 Seay v. Tennessee Valley Authority et al. No. 01-5953

described in paragraph (1)(B) of this subsection.” 5 U.S.C. required to develop an administrative record with respect to

§ 7702(a)(2). In other words, subsection (a)(2) refers to any his nondiscrimination claims because claims, when appealed

cause of action encompassing an MSPB claim and a from an agency’s EEO process, are reviewed de novo.

discrimination claim. It refers to a mixed claim. If a district Consequently, Plaintiff did not waive any right to have his

court may analyze the MSPB issues de novo when a “mixed nondiscrimination claim heard by the district court, and the

case” complaint is appealed from an agency’s EEO process, district court erred in ruling otherwise. We therefore will

the subsequent abandonment of the discrimination claim in address the merits of those decisions now.

the district court cannot make the necessity for an

administrative record suddenly appear. TVA cannot point to B. Count 123--Violation of TVA’s Hiring and Retention

any statutory authority to indicate that a plaintiff is to be Policy for Disabled Veterans

disadvantaged in retrospect for abandoning a claim after

initially pursuing the claim in district court, or that Plaintiff argues that the district court erred in dismissing his

nondiscrimination claims must always be reviewed on an challenge to enforce TVA’s hiring and retention policy for

administrative record.3 disabled veterans. The policy reads as follows:

Thus, we hold that subject matter jurisdiction exists over The Tennessee Valley Authority (TVA) has an up-to-

these nondiscrimination claims. Moreover, Plaintiff was not date Affirmative Action Plan (Plan) that is committed to

the hiring, retention, and advancement of disabled

veterans. This Plan is consistent with statutory

requirements under Title 38 U.S.C., Section 2015(c),

3 included as part of TVA’s affirmative action obligations

TVA relies principally on two cases for the proposition that

nondiscrimination claims m ust always be reviewed on an administrative for the disabled under Section 501(b) of the

record. The first is Johnson v. Burnley, 887 F.2d 4 71, 474 n.1 (4th Cir. Rehabilitation Act of 1973.

1989), vacated en banc and appeal dismissed, 887 F.2d at 471, which

stated that “[i]n a m ixed case . . . the discrimination claim receives a de

novo trial in the district court, while the non-discrimina tion claim is

TVA is committed to ensuring affirmative action for the

reviewed on the record.” (citations omitted) Ho wever, Johnson was employment and advancement of qualified disabled

speaking of judicial review in the co ntext of a case appealed from the veterans, especially those veterans who are rated at 30

MSPB. In the present case, P laintiff is appealing from TV A’s EEO percent or more disabled. No individual may be denied

process. employment, developmental opportunities, or

TVA also cites Mason v. Frank, 32 F.3d 315 (8th Cir. 1994). At the

advancement, nor may disciplinary action be taken

district court the Mason plaintiff succ essfully ob jected to the entry of the against him/her solely because of physical or mental

MSPB into the re cord beca use he was pursuing his discrimination claim disability.

only and the M SPB record was therefore irrelevant. Id. at 31 8. The

Eighth Circuit held that Plaintiff could not subsequently reassert the This commitment to employ, retain, and advance

nondiscrimination claim after having prevented the MSPB record from qualified disabled veterans shall apply to all supervisors,

being entered at the district co urt. Id. Mason is distinguishable on two

bases. First, the Mason plaintiff, like the Johnson plaintiff, appealed his

managers, and other officials in a position to influence

“mixed case” complaint to the district court from the MSPB . Second, the personnel policies/practices.

court’s reasoning was based on principles of estoppel, not any statutory

authority requiring an administrative record . Thus, Mason is inapp osite

as well.

No. 01-5953 Seay v. Tennessee Valley Authority et al. 25 26 Seay v. Tennessee Valley Authority et al. No. 01-5953

(J.A. at 426.) The district court held that no private cause of does not require an affirmative action policy for disabled

action existed for Plaintiff to enforce a corporately-adopted veterans. Section 501 of the Act requires each federal agency

plan. Plaintiff argues on appeal that because TVA’s policy is to submit “an affirmative action program plan for the hiring,

federally mandated, a private cause of action exists to enforce placement, and advancement of individuals with disabilities

the affirmative action benefits contained therein. Specifically, in such department, agency, instrumentality, or Institution.”

Plaintiff points to § 501(b) of the Rehabilitation Act of 1973, 29 U.S.C. § 791(b). To this end, § 501 provides a private

29 U.S.C. § 791(b), which requires federal employers to adopt remedy for individuals who encounter discrimination on the

an affirmative action policy for the hiring, placement, and basis of disability. Mahon v. Crowell, 295 F.3d 585, 589 n.2

advancement of disabled individuals, and § 403(c) of the (6th Cir. 2002). However, we do not read the Rehabilitation

Vietnam Era Veterans’ Readjustment Assistance Act Act as extending its private remedy to the rights contained in

(VEVRA), 38 U.S.C. § 4214(c), which requires employers VEVRA. The only nexus between the Rehabilitation Act and

who enter into certain contracts with the United States to VEVRA is that VEVRA requires a “separate specification”

adopt “a separate specification of plans . . . to promote and for disabled veterans to be included in the Rehabilitation Act-

carry out such affirmative action with respect to disabled required affirmative action policy for disabled individuals.

veterans in order to achieve the purpose of this section.” The fact that VEVRA references the Rehabilitation Act for

this purpose does not mean it implicitly incorporates all rights

As an initial matter, it is not entirely clear whether this contained in the Rehabilitation Act into VEVRA. See Antol

policy to which Plaintiff points is federally mandated. v. Perry, 82 F.3d 1291, 1297 (3d Cir. 1996) (rejecting the

Although the parties agree that TVA is subject to § 501 of the plaintiff’s argument that Congress’ amendment of the

Rehabilitation Act and § 403 of VEVRA, TVA maintains that Rehabilitation Act to waive sovereign immunity and include

the policy is voluntary and that there exists a “separate a private remedy for aggrieved disabled individuals meant

specification” under its Rehabilitation Act-mandated policy. that § 403 of VEVRA was also implicitly amended, and

However, TVA fails to point to anything in the record that reasoning that it could not “enlarge the waiver [of sovereign

would constitute the “separate specification” that VEVRA immunity] in the Rehabilitation Act ‘beyond what the

requires. At any rate, we need not decide this issue because language of the statute requires’”) (quoting United States v.

even if this policy is the VEVRA-required “separate Idaho ex rel. Dir., Idaho Dep’t of Water Res., 508 U.S. 1, 7

specification,” no private remedy exists. We have already (1993)). Therefore, no private remedy exists for Plaintiff on

held that VEVRA does not extend a private cause of action to this issue.4

aggrieved veterans such as Plaintiff. Harris v. Adams, 873

F.2d 929, 932 (6th Cir. 1989). Although Plaintiff argues that

not allowing a private right of action would render § 4214

meaningless, this is not the case. As we previously explained,

“veterans who believe themselves to be victims of

discrimination may complain to the Secretary of Labor, who

enforces [VEVRA] administratively.” Id. at 931 (citing 4

TVA also suggests that an action upon any o ther basis (other than

predecessor to 38 U.S.C. § 4212(b)). VEVRA or the R ehab ilitation Act) is preemp ted by the Civil Service

Reform Act of 197 8, Pub. L. No. 95-4 54, 9 2 Stat. 111 1 (co dified in

Plaintiff contends alternatively that the Rehabilitation Act various sections of titles 5, 10, 15, 28, 31, 38, 39, and 4 2 U.S.C.).

Because of our determination that no private remed y exists for P laintiff,

provides a private remedy. However, the Rehabilitation Act we need not reach this issue.

No. 01-5953 Seay v. Tennessee Valley Authority et al. 27 28 Seay v. Tennessee Valley Authority et al. No. 01-5953

C. Count 125: Violation of Supplementary Agreement the available SD-3 positions or reemployment to those

10 to the Collective Bargaining Agreement positions after his termination.

Next, Plaintiff challenges the district court’s dismissal of Because Plaintiff did not follow the grievance procedure for

Count 125 of his amended complaint, which alleged that TVA alleged contractual violations, the district court dismissed this

violated his reemployment RIF rights under its own policy for claim for failure to exhaust administrative remedies. TVA

displaced policy veterans, namely, a document known as asserts the district court’s reasoning on appeal. Plaintiff

“Supplementary Agreement 10,” which is part of the argues that he was not required to follow the grievance

collective bargaining agreement between TVA and the union procedure because TVA had adopted Supplementary

representing TVA’s employees. Specifically, Supplementary Agreement 10 as its corporate policy, and therefore the

Agreement 10 “governs the elimination of positions and collective bargaining agreement grievance procedures did not

termination of employees through a [RIF].” (J.A. at 392, 394- apply. However, the record reflects no evidence that TVA

404.) It provides to “RIF’d” employees an opportunity to be adopted Supplementary Agreement 10 as its corporate policy,

placed on a reemployment list for up to two years following and we will not make this finding now.

termination “for jobs for which the employee indicates

interest and availability at the time of separation and which Plaintiff argues alternatively that Supplementary

are in the same classes as jobs he/she has held in TVA.” (J.A. Agreement 11 of the collective bargaining agreement allows

at 397.) The Supplementary Agreement also includes a claimants to bypass the grievance procedure. Supplementary

veterans’ preference in rehiring. Agreement 11 provides that “[i]f an appeal or formal

complaint with respect to an action, matter, or proposed

It does not appear to be disputed that Plaintiff received his action is or has been filed under a separate procedure

veterans’ preference regarding the RIF; i.e., among the provided by law or Federal regulations, a grievance regarding

employees in his work group, he was the last to be subjected such action, matter, or proposed action will not be considered

to the RIF, but because the entire department was eliminated, or, if in progress, will not be further considered or decided

he, as well as his coworkers, was RIF’d. Plaintiff contends, under this agreement.” (J.A. at 403-04.) Plaintiff argues that

however, that TVA did not follow Supplementary Agreement because he placed his grievance about Supplementary

10 with respect to rehiring preferences. Plaintiff notes that his Agreement 10 in his “mixed case” complaint filed through

colleague Ronald Stamps, another Safety Specialist in the TVA’s EEO process, he could not simultaneously pursue the

Labor and Safety department who was terminated at the same complaint through the collective bargaining agreement

time as Plaintiff, subsequently received a position that grievance process. We agree with Plaintiff that he pursued a

became available. Plaintiff contends that Stamps’ rehire legitimate alternative route, based on the language in

contravened Supplementary Agreement 10, which required Supplementary Agreement 11.

TVA to offer the job to Plaintiff first. Plaintiff also contends

that pursuant to Supplementary Agreement 10, he should 1. Reemployment Rights

have been offered positions less senior to the one he held at

the time of his RIF. Plaintiff was ranked SD-4 at the time of Turning our attention to the merits, Plaintiff’s claim to

his RIF, and he had previously been employed in the SD-3 reemployment rights fails. The reemployment list policy

classification. Plaintiff claims TVA violated Supplementary enables a RIF’d employee to have his or her name placed on

Agreement 10 by failing to offer him a reassignment to any of the list for two years “for jobs for which the employee

No. 01-5953 Seay v. Tennessee Valley Authority et al. 29 30 Seay v. Tennessee Valley Authority et al. No. 01-5953

indicates interest and availability at the time of separation and offers no explanation for the discrepancy, but presumably

which are in the same classes as jobs he/she has held in Plaintiff (or one of his colleagues of comparable or greater

TVA.” (J.A. at 397.) Plaintiff completed an Interest and preference) should have been offered the opportunity to be

Availability for Reemployment Following RIF form; reassigned to the lower level position, and this evidently did

however, he listed among the job classifications and grades not happen. A good explanation for the discrepancy still

for which he wished to be considered only Safety Specialist, might exist; however, we find that a genuine issue of material

SD-4 grade. Plaintiff did not indicate a desire to be fact remains as to whether TVA provided to Plaintiff his

considered for any SD-3 positions. Therefore, Ronald reassignment rights pursuant to Supplementary Agreement 10

Stamps, who indeed was RIF’d on the same day as Plaintiff of TVA’s collective bargaining agreement. Therefore, we

and retained a lower preference than Plaintiff, received the reverse the district court’s grant of summary judgment in

position at issue because the position for which he was favor of TVA on this claim with respect to Plaintiff’s

rehired was of the SD-3 grade and Plaintiff did not request to reassignment rights.

be considered for this type of job. Therefore, this claim lacks

merit. D. Count 126: Violation of Plaintiff’s Procedural RIF

Rights

2. Reassignment Rights

In Count 126, Plaintiff had asserted violations of three RIF

However, there does appear to be a genuine issue of rights: (1) veterans’ preference in retention of employees;

material fact regarding whether Plaintiff was afforded his (2) “bumping and retreating” rights; and (3) reemployment

reassignment rights pursuant to the collective bargaining rights.

agreement. Supplementary Agreement 10 provides that a

RIF’d employee with at least ten years of service “may 1. Veterans’ Preference in Retention Rights

displace another employee in the same competitive area, but

in a different competitive level, by application of reduction in Plaintiff appears to argue that TVA failed to exercise all

force procedures.” (J.A. at 397.) Thus, applicable RIF’d means to retain Plaintiff in his Safety Specialist, SD-4

employees may be reassigned to any available lower-grade position when implementing the RIF. However, it is not

position they have held on a non-temporary basis. Such disputed that Plaintiff, as a disabled veteran, was placed at the

employees are placed on a retention register, which lists the top of the list (i.e., he would be the last in his department to

grade levels for which each employee is eligible and states be RIF’d). All of the employees in the Safety Specialist

whether positions in those grade levels are available. department were RIF’d, and therefore Plaintiff is without a

legitimate complaint in this regard.

Among those listed in the Retention Register was Plaintiff,

who was designated “RR [Return Rights to] Safety Specialist, 2. Bumping and Retreating Rights; Reemployment

SD-3 (No position available).” (J.A. at 1160.) The record Rights

indicates that Plaintiff had served in positions of the grade

levels SD-2, SD-3, SE-3, and SE-4. Deposition testimony Plaintiff also argues that TVA failed to accord him all of

from Jimmy Raines, General Manager of Human Resources his bumping, retreating, and reemployment rights, pursuant to

at TVA, acknowledged that at least one SD-3 position was 5 C.F.R. § 351.701:

available but was not listed on the retention register. TVA

No. 01-5953 Seay v. Tennessee Valley Authority et al. 31 32 Seay v. Tennessee Valley Authority et al. No. 01-5953

When a group I or II competitive service employee with competitive service by or under statute.” 5 U.S.C.

a current annual performance rating of record of § 2102(a)(1)(A). The statute authorizing the TVA indicates

minimally successful (Level 2) or equivalent, or higher, that “[t]he board shall without regard to the provisions of

is released from a competitive level, an agency shall offer Civil Service laws applicable to officers and employees of the

assignment, rather than furlough or separate, in United States, appoint such managers, assistant managers,

accordance with paragraphs (b), (c), and (d) of this officers, employees, attorneys, and agents as are necessary for

section to another competitive position which requires no the transaction of its business.” 16 U.S.C. § 831b (emphasis

reduction, or the lease [sic] possible reduction, in added). This means that TVA is exempted “from

representative rate. conditioning its appointments on the passage of a competitive

examination. The competitive examination is the touchstone

Id. § 351.701(a). Subsections (b) and (c) detail the of the competitive service.” Dodd, 770 F.2d at 1040. We

requirements for “bumping” (the right of one employee to agree with the Federal Circuit’s analysis and hold that TVA

displace another employee in a lower subgroup) and employees are not in the competitive service. Consequently,

“retreating” (the right to take a position within the same TVA employees are not entitled to the rights contained in 5

subgroup but held by someone with a lower retention U.S.C. § 2102 or 5 C.F.R. § 351.701. Accordingly, Plaintiff

standing). Id. § 351.701(b), (c). Plaintiff argues that TVA was not entitled to these retention preferences, and we affirm

only considered him for a SD-3 position, when in fact his the district court’s dismissal of Count 126.

bumping privileges entitled him to consideration for SD-2 and

SD-1 positions as well. Plaintiff also argues that TVA did not E. Count 127: Violation of Plaintiff’s Substantive RIF

accord him his retreating privileges either. Rights

However, as TVA correctly points out, § 351.701 applies Plaintiff also challenges his RIF on various substantive

only to employees in the competitive service. See 5 C.F.R. grounds. Specifically, he challenges the “overall legitimacy

§ 351.701(a). The next question is whether Plaintiff was of the reorganization” that caused his RIF. In responding to

employed in the competitive or excepted service. It does not such a claim, TVA bears the burden to demonstrate, by a

appear that we have squarely decided this issue,5 but the preponderance of the evidence, that the RIF was legitimate

Federal Circuit has. In Dodd v. Tennessee Valley Authority, and was properly applied to the individual employees. See

770 F.2d 1038 (Fed. Cir. 1985), the court looked at the Gandola v. FTC, 773 F.2d 308, 313 (Fed. Cir. 1985) (“If the

definition of “competitive service,” under 5 U.S.C. § 2102, agency proves that the reduction in force regulations were

which is “all civil service positions in the executive branch, invoked for a legitimate reason and that those regulations

except (A) positions which are specifically excepted from the were properly applied to the individual employees . . . the

agency action will be sustained.”) (citation omitted); Wilburn

v. Dep’t of Transp., 757 F.2d 260, 262 (Fed. Cir. 1985) (“An

5

However, at least one district court within this circuit has. See

agency has the burden of demonstrating to the board that its

Pulley v. Ten n. Valley A uth., 368 F. Supp. 90, 93 (M.D. Tenn. 1973) action is supported by a preponderance of the

(“TVA employees are not subject to the Civil Service Act, and are no t in evidence . . . .”).

‘competitive service’ as define d in said Act.”) (citations omitted). See

also Jones v. Tenn. Valley Auth., 948 F.2d 258, 262 (6th Cir. 1991) It is not disputed that the RIFs were part of a

(observing without discussion that the plaintiff, a TV A preference eligib le reorganization, undertaken by TVA, of several departments.

veteran emp loyee, was in the excep ted service).

No. 01-5953 Seay v. Tennessee Valley Authority et al. 33 34 Seay v. Tennessee Valley Authority et al. No. 01-5953

A reorganization is an appropriate reason for a RIF. See 5 the validity of the suspension,6 and Count 129 alleged that

C.F.R. § 351.201(a)(2) (“Each agency shall follow this part TVA subjected Plaintiff to racially disparate treatment by

when it releases a competing employee from his or her suspending him for sixty days, while suspending white

competitive level . . . when the release is required because of employees for only thirty days for the same offense. TVA’s

. . . reorganization . . . .”); Gandola, 773 F.2d at 312 (holding vehicle use policy reads as follows:

that a RIF taken “to reduce the manpower within the ceiling

allocation” constituted “an appropriate management An officer or employee of the United States Government

consideration”) (internal quotation marks omitted). or of the District of Columbia government violating

Moreover, it is not disputed that the RIF applied to everyone section 1341(a) or 1342 of this title shall be subject to

in Plaintiff’s department; therefore it occurred in an even- appropriate administrative discipline including, when

handed manner. Plaintiff’s suspicions about the consultant, circumstances warrant, suspension from duty without pay

Scott Madden, who had advised TVA to undertake the or removal from office.

reorganization, are insufficient to overcome TVA’s showing

that the RIF occurred pursuant to “bona fide management 31 U.S.C. § 1349.

considerations.” Gandola, 773 F.2d at 312. Because TVA

met its burden of demonstrating that the RIF was legitimate, As to Count 128, Plaintiff argues that genuine issues of

and Plaintiff has not asserted any genuine issue of material material fact remain as to whether the suspension was

fact to rebut the RIF’s evident legitimacy, we affirm the appropriate. Specifically, Plaintiff argues that a genuine issue

district court’s grant of summary judgment to TVA on this remained as to whether he willfully violated the policy. In

claim. support, Plaintiff points to the October 7, 1991 issue of

TVA’s daily publication, “TVA Today,” which announced a

F. Count 131: Adverse Action as to Plaintiff’s RIF change in the vehicle use policy:

Rights

Employees may now use TVA vehicles or rental cars for

Count 131 of Plaintiff’s amended complaint sought a incidental purposes without getting their supervisors’

review of his RIF pursuant to MSPB guidelines. However, permission. The policy change is effective immediately.

Count 131 does not allege that TVA committed any particular Supervisors have been sent background information

violation in conducting the RIF. Moreover, on appeal about the change to help answer employees’ questions.

Plaintiff does not advance any theories to support this claim. Details are in the Oct. 8 issue of Inside TVA.

Because we cannot discern from the vague reference to

“MSPB standards” what Plaintiff’s argument is, we affirm the

district court’s dismissal of this count.

V 6

In an argument similar to that ad vanced regarding Co unts 126, 127,

and 131, TVA argues that the district court p roperly dismissed Count 128

Plaintiff also challenges his sixty-day suspension for because Plaintiff failed to develop an administrative record with the

violating TVA’s vehicle use policy. Count 128 challenged MSPB. As we have already discussed, the nondiscrimination compone nt

of a “mixed case” complaint, when appealed from the EEO process, may

properly be reviewed de novo by a district court. See IV.A , supra.

Therefore, TVA ’s argum ent in this reg ard lacks merit.

No. 01-5953 Seay v. Tennessee Valley Authority et al. 35 36 Seay v. Tennessee Valley Authority et al. No. 01-5953

(J.A. at 1270.) Plaintiff argues that because TVA started to v. Commonwealth Life Ins. Co., 40 F.3d 796, 802 (6th

allow employees to use the TVA vehicles for incidental Cir.1994).

purposes, he thought he was permitted to drive from Raccoon

Mountain to Birmingham for his law school class, which was The parties dispute whether Plaintiff can satisfy the

139 miles away. “similarly-situated” requirement. Plaintiff points to four

employees: Danny Seal (no discipline), Tanveer Khalid (no

Plaintiff’s argument is insufficient to establish a genuine discipline), Guy Kidd (thirty-day suspension), and Roy

issue of material fact. First of all, there is no dispute that the Mason (thirty-day suspension). Although these employees all

statute mandates penalties for violators of this statute. misused TVA vehicles and received less discipline, the facts

Second, we seriously doubt that any reasonable juror would surrounding Seal’s, Khalid’s, and Kidd’s violations differ in

believe, in good faith, that a 139-mile trip (one way) is relevant respects from the facts surrounding Plaintiff’s

incidental, or that an employee would reasonably believe that violation. In the cases of Seal and Khalid, TVA’s

such a trip was incidental. Because we find that Count 128 investigation determined that their respective supervisors had

lacks merit, we affirm the dismissal of that count. approved their misuses of the TVA vehicles (and therefore

those employees were not disciplined because they did not

Plaintiff also argues that the district court erred in willfully violate the policy), whereas nobody had approved

dismissing Count 129 (racially disparate treatment regarding Plaintiff’s misuse. Plaintiff has offered nothing to contradict

Plaintiff’s suspension) because genuine issues of material fact the accuracy of this finding. Kidd used a TVA vehicle to take

remain as to whether TVA engaged in racial discrimination in his wife and neighbor to church on one occasion, whereas

violation of Title VII by suspending Plaintiff for sixty days Plaintiff received a sixty-day suspension because he misused

when it suspended white violators of the policy for only thirty a TVA vehicle “on two separate occasions.” (J.A. at 493.)

days. Because of these relevant differences, we do not believe that

these three non-protected employees Plaintiff identified are

In order to establish a prima facie claim of disparate sufficiently “similarly-situated” for Plaintiff to establish his

treatment, a plaintiff must “produce evidence which at a prima facie case.

minimum establishes (1) that he was a member of a protected

class and (2) that for the same or similar conduct he was However, Plaintiff has also identified Roy Mason, a white

treated differently than similarly-situated non-minority employee who had used a TVA vehicle to haul his boat to a

employees.” Mitchell v. Toledo Hosp., 964 F.2d 577, 583 lake. The record indicates that Mason’s violation was not

(6th Cir. 1992). Moreover, “the plaintiff must show that the approved by any of Mason’s superiors and that the violation

‘comparables’ are similarly-situated in all respects, absent occurred on two occasions. Despite these similarities, Mason

other circumstantial or statistical evidence supporting an was suspended for only thirty days, while Plaintiff received

inference of discrimination.” Ercegovich v. Goodyear Tire & sixty days.

Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998) (quoting

Mitchell, 964 F.2d at 583) (internal quotation marks omitted). TVA nevertheless asserts that Mason is not similarly-

This means a plaintiff must “prove that all of the relevant situated because he and Plaintiff worked in different TVA

aspects of his employment situation were ‘nearly identical’ to departments and had different supervisors. It is true that

those of [the non-minority's] employment situation.” Pierce similarly-situated employees ordinarily “must have dealt with

the same supervisor, have been subject to the same standards

No. 01-5953 Seay v. Tennessee Valley Authority et al. 37 38 Seay v. Tennessee Valley Authority et al. No. 01-5953

and have engaged in the same conduct without such that Mason and Plaintiff were “subject to the same standards”

differentiating or mitigating circumstances that would or that Mason’s conduct included “differentiating or

distinguish their conduct or the employer’s treatment of them mitigating circumstances that would distinguish their conduct

for it.” Mitchell, 964 F.2d at 583 (citations omitted). or the employer’s treatment of them for it.” Mitchell, 964

However, the “same supervisor” criterium has never been F.2d at 583. Despite the similar circumstances, Plaintiff was

read as an inflexible requirement. The requirement is punished for a time period that was twice as long as Mason’s.

particularly problematic here, where a violation such as We therefore conclude that Plaintiff has demonstrated that he

vehicle misuse does not occur frequently enough to invite and Mason were similarly-situated in all relevant respects.

such a direct comparison within a compartmentalized Because Plaintiff satisfied his prima facie case with respect to

organization. See Ercegovich, 154 F.3d at 353 (noting that Count 129, we reverse the district court’s grant of summary

inflexible criteria for establishing the similarly-situated judgment to TVA on this claim.

requirement would mean that “a plaintiff whose job

responsibilities are unique to his or her position will never VI

successfully establish a prima facie case (absent direct

evidence of discrimination)”). In such cases, we have Finally, Plaintiff argues that the district court erred in

emphasized the importance of “mak[ing] an independent denying his motion to strike evidentiary submissions TVA

determination as to the relevancy of a particular aspect of the presented with its reply brief. He argues that this was

plaintiff’s employment status and that of the non-protected prejudicial to his case because he was not allowed to respond

employee.” Id. at 352. Thus, a plaintiff “need not to the new evidence TVA submitted with its reply brief.

demonstrate an exact correlation with the employee receiving

more favorable treatment” so long as the two employees are “We review the decision to grant or deny a motion to strike

“similar in ‘all of the relevant aspects.’” Id. (citing Pierce, for an abuse of discretion, and decisions that are reasonable,

40 F.3d at 802). that is, not arbitrary, will not be overturned.” Collazos-Cruz

v. United States, 117 F.3d 1420 (Table), 1997 WL 377037, at

In the present case, the record indicates that the decision to *2 (6th Cir. July 3, 1997) (per curiam) (citing Whitted v. Gen.

suspend Plaintiff for sixty days was not made in a vacuum. Motors Corp., 58 F.3d 1200, 1203 (7th Cir. 1995)); see also

Several discussions took place, as well as a meeting in which Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1164 (10th Cir.

participants included Johnson (Plaintiff’s immediate 1998) (applying an abuse of discretion standard to the district

supervisor), Walters (the Labor Relations and Safety court’s ruling allowing the defendant to file a reply brief but

Department manager and Johnson’s supervisor), a denying the plaintiffs’ motion to file a surreply brief).

representative from TVA’s human resources department

(which is involved in any type of disciplinary action), and a The facts demonstrate that with respect to TVA’s first and

representative from TVA’s legal department. Past discipline third motions for partial summary judgment, Plaintiff filed

for similar misuses was discussed at that meeting. Thus, all opposition papers, and more than five days later TVA filed

of the people involved in the decision-making process, reply briefs, to which it attached additional evidence in the

including Plaintiff’s immediate supervisor and the department form of declarations with exhibits. The additional evidence

manager, were well-aware of the discipline meted out to past was not included with TVA’s original motions. Plaintiff filed

violators, including Roy Mason, who had violated the policy motions to strike these evidentiary submissions, and the

on at least two occasions. Moreover, TVA does not dispute district court denied Plaintiff’s motions. Plaintiff argues on

No. 01-5953 Seay v. Tennessee Valley Authority et al. 39 40 Seay v. Tennessee Valley Authority et al. No. 01-5953

appeal that the district court abused its discretion in allowing court’s decision not to strictly enforce Local Rule 7.1.

these evidentiary submissions because (1) the reply briefs However, we conclude that the district court was not entitled

were not timely filed pursuant to Local Rule 7.1(a) of the to enter summary judgment for TVA under these

Eastern District of Tennessee,7 and (2) in granting summary circumstances, inasmuch as Plaintiff was not accorded an

judgment, the district court relied on new evidence in TVA’s adequate opportunity to respond to the new evidence

reply briefs without first affording Plaintiff an adequate presented with TVA’s reply briefs.

opportunity to respond to that new evidence.8

When new submissions and/or arguments are included in a

In denying Plaintiff’s motions to strike, the district court reply brief, and a nonmovant’s ability to respond to the new

reasoned that TVA’s evidentiary submissions merely pointed evidence has been vitiated, a problem arises with respect to

out additional facts that Plaintiff had in his possession and Federal Rule of Civil Procedure 56(c). Rule 56(c) requires

could have addressed in his response brief, and that the that an adverse party receive ten days notice before a district

Federal Rules of Civil Procedure did not preclude TVA from court may enter summary judgment. Fed. R. Civ. P. 56(c);

including these new submissions in its reply brief. Employers Ins. of Wausau v. Petroleum Specialties, Inc., 69

F.3d 98, 105 (6th Cir. 1995). The purpose of Rule 56(c) is to

We only partially agree with the district court. Although afford the nonmoving party notice and a reasonable

the second and third reply briefs were not timely filed in opportunity to respond to the moving party’s summary

accordance with Local Rule 7.1, we do not agree with judgment motion and supporting evidence. See Celotex Corp.

Plaintiff that it would always be appropriate, barring extreme v. Catrett, 477 U.S. 317, 326 (1986) (holding that summary

circumstances, for us to preclude a submission to the district judgment is to be entered only if the nonmovant is on notice

court for failure to comply with the requirements of a local that it must come forward with all of its evidence). It is only

rule. Salehpour v. Univ. of Tenn., 159 F.3d 199, 205 (6th Cir. logical that the purposes of notice and opportunity to respond

1998) (citing Stough v. Mayville Comm’ty Schs., 138 F.3d extend Rule 56(c) to the situation where the moving party

612, 614-15 (6th Cir. 1998)). Enforcing timely filing, on submits in a reply brief new reasons and evidence in support

these facts, does not constitute an extreme circumstance. We of its motion for summary judgment, and require a district

therefore are not inclined to reverse based on the district court to allow the nonmoving party an opportunity to respond.

Beaird, 145 F.3d at 1164-65 (citing Cia. Petrolera Caribe,

Inc. v. Arco Caribbean, Inc., 754 F.2d 404, 410 (1st Cir.

7

1985)). This is particularly true when the district court relies

Local Rule 7 .1 sets a d efault briefing schedule for motion practice, on the new evidentiary submissions.9

providing that “any reply brief and accomp anying material shall be served

and filed no later than 5 days after the se rvice o f the answering b rief.”

E.D . T E N N . L OC AL R. 7.1.

9

8

TVA argues on appeal that Plaintiff could have filed a surreply,

Plaintiff also argues on appeal that the district co urt erred in pursuant to Ea stern D istrict of T ennessee Local Rule 7.1(d ). See E.D.

allowing evidentiary subm issions in TV A’s reply brief in sup port of its T E N N . L OCAL R. 7.1(d). However, this is beside the point, as the district

fourth summ ary jud gment motion. However, P laintiff did not move to court granted summary judgment only three days after TVA filed the

strike these evidentiary submissions below; he moved to strike the reply brief, arguably too swiftly for Plaintiff to have requested a surreply.

amended summary judgment motion. Therefore, we will not consider any TVA also cites Peters v. Linc oln E lectric C o., 285 F.3d 456, 476 -77 (6 th

of Plaintiff’s arguments with respect to the fourth summary judgment Cir. 2002), which held that the district court did not err in considering an

motio n here. affidavit submitted with a reply brief because the plaintiff had an

No. 01-5953 Seay v. Tennessee Valley Authority et al. 41 42 Seay v. Tennessee Valley Authority et al. No. 01-5953

In this case, most of TVA’s additional submissions VII

consisted of evidence Plaintiff already had included among

his evidentiary submissions to the district court. However, at For all the foregoing reasons, we AFFIRM the district

least one of TVA’s submissions involved new evidence. The court’s grant of summary judgment in favor of TVA on

new evidence concerned a declaration from Rowena Belcher, Counts 15, 123, 125 (with respect to reemployment rights),

General Manager of Human Resources for TVA’s Chief 126, 127, 128, and 131. However, we REVERSE the grant

Operating Officer Fossil Power Group organization. The of summary judgment in favor of TVA on Counts 67, 75, 125

declaration was dated March 22, 2001, seven days after (with respect to reassignment rights), and 129, as well as the

Plaintiff filed his papers in opposition to TVA’s summary district court’s denial of Plaintiff’s motion to strike the new

judgment motion. Exhibits C and D attached to the evidentiary submissions attached to TVA’s first and third

declaration involved newly-produced evidence. The district reply briefs. We REMAND those claims to the district court

court issued an order granting TVA’s motion just three days for further consideration not inconsistent with this opinion.

after TVA’s reply brief was filed. In so doing, the court

relied on the Belcher declaration and its attached evidence in

dismissing Count 46 of Plaintiff’s amended complaint. We

therefore hold that the district court abused its discretion in

granting summary judgment so quickly without allowing

Plaintiff an adequate opportunity to respond to the new

evidence.

We need not reverse the dismissals of any other counts in

Plaintiff’s amended complaint. The district court relied on

the new evidence in dismissing only Count 46, and Plaintiff

elected not to appeal the dismissal of this claim. However, in

adjudicating the four counts we remand, the district court is

precluded from considering any of the new submissions

attached to TVA’s first and third reply briefs until Plaintiff

has been provided an adequate opportunity to respond to that

new evidence.

opp ortunity to respond to the evid ence. However, Peters concerns

Federal Rule of Civil Procedure 6(d), which requires that “[a] written

motion . . . and notice of the hearing thereof shall be served not later than

5 days before the time specified for the hearing.” Fed. R. Civ. P. 6(d).

Even if Peters had concerned the Rule 56(c) context, the fact remains that

the district co urt failed to allow P laintiff a reasonable am ount o f time to

respond in one form or another.