Worker Can Challenge Employment Decision Based on Panel Member’s Alleged Bias

By Jeffrey Rhodes September 20, 2022
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Takeaway: Employers should avoid having a supervisor accused of harassment participate in a decision-making panel. Otherwise, a court could find that the panel's decision was the result of the supervisor's discriminatory animus.

​A Tennessee Valley Authority (TVA) employee could challenge a decision to remove him from a training class instructor position based on the alleged bias of a panel member participating in the review of whether it would be a conflict of interest for the employee to teach a class with his son enrolled in it. The removal resulted in a significant reduction in the employee's earnings.

Since 1985, the plaintiff worked at the TVA, a federally owned corporation that provides utilities to the Tennessee Valley region. The TVA operates two nuclear power plants in Tennessee: the Sequoyah Nuclear Plant and the Watts Bar Nuclear Plant. For most of the plaintiff's career at the TVA, he worked as an assistant unit operator (AUO) at the Sequoyah Nuclear Plant.

The TVA runs two types of training programs at its nuclear plants: one for AUOs who are not licensed and one for licensed training operators. The AUO training program has two types of courses: an initial Nuclear Student Generation Plant Operating (NSGPO) training course and Nonlicensed Operator Requalification (NLOR) courses to keep requirements up-to-date. Each plant has a local joint training subcommittee that oversees the programs.

In May 2015, the Sequoyah plant's committee appointed the plaintiff to be an NSGPO instructor, developing lessons, exams and course materials. He collaborated with both licensed and unlicensed instructors. His supervisor oversaw his daily activities in the unlicensed training program.

The plaintiff took medical leave in October 2016 to manage his liver cirrhosis. In February 2017, the plaintiff returned to work after receiving a liver transplant. His condition required him to occasionally use a cane and to take medications, which he kept on his desk.

Beginning in January 2017, a second-level supervisor assumed authority over all training programs at the Sequoyah Training Center as the operations training manager. Shortly after the plaintiff returned to work, the manager allegedly began to comment on his health and age, berating him about his disability and pressuring him to retire. Among other things, he allegedly said:

  • "If you're not at 100 percent, I can't use you. Just how disabled are you?"
  • "Are you 100 percent yet? … I'm tired of disabilities, and I'm tired of medical problems."
  • "I think your disability is slowing all this down. You're really too old to be doing this."

He also allegedly asked whether the plaintiff was "eligible for disability" and said that he was not running a rehabilitation clinic. In addition, the manager asked the plaintiff his age and said numerous times that he should consider retiring, according to the plaintiff.

He also warned the plaintiff that he was vindictive and not patient. On one occasion, he told the plaintiff, "If you p--- me off, you're not going to be working over here, I'm just telling you."

Other employees heard the manager make similar comments. In November 2017, the plaintiff reported these incidents to his supervisor, an HR generalist, and the union vice president.

That same month, the plaintiff's son applied for a position in the NSGPO classes offered at Sequoyah and Watts Bar. He preferred a position in the Sequoyah Nuclear Plant but was willing to work at either location. TVA offered him a position in the NSGPO training program at Sequoyah beginning in March 2018. The plaintiff was scheduled to teach that class.

At that time, another employee applied to be an NSGPO instructor. This worker's son was enrolled in the class. The committee considered whether there was a conflict of interest in either situation. The committee had four members: the manager, the HR generalist, the union vice president and an operations management representative.

Initially, the union vice president and the operations management representative suggested having the plaintiff teach NLOR classes instead. Ultimately, the committee decided unanimously that an instructor should not teach a course if his or her child is enrolled in that course. The plaintiff was removed from teaching the NSGPO class, decreasing his salary by $28,000 a year.

The plaintiff filed a federal court lawsuit, alleging violations of the Age Discrimination in Employment Act and the Rehabilitation Act. The TVA moved for summary judgment, which the district court granted. The plaintiff appealed to the 6th U.S. Circuit Court of Appeals.

On appeal, the plaintiff argued that the committee's decision was discriminatory, based upon the harassing comments by one member, the operations training manager. The 6th Circuit agreed that the plaintiff presented enough evidence to show that the manager could have swayed the committee's decision. It thus reversed the decision granting summary judgment.

Bledsoe v. Tennessee Valley Authority Board of Directors, 6th Cir., No. 21-5808 (July 27, 2022).

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.

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