U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Byron E.,1 Complainant, v. Bill Johnson, President and Chief Executive Officer, Tennessee Valley Authority, Agency. Appeal No. 0120140939 Agency No. TVA-2013-0052 DECISION Complainant filed a timely appeal from the Agency's December 12, 2013 decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). For the reasons that follow, the Commission VACATES the Agency's decision. ISSUE PRESENTED Was the Agency's finding that it did not engage in racial discrimination when it did not select Complainant for a position proper? BACKGROUND Complainant began working for the Agency in 2005. At the time of his complaint, he worked as a Fossil Mechanical Technician III at the Agency's Chief Generating Office, Coal Operations, Colbert Fossil Plant in Alabama. Complainant applied for the position of Nuclear Mechanical Technician II (Maintenance) in the Agency's Browns Ferry Nuclear Plant, also in Alabama, and he was not selected. In his formal complaint, he alleged that the Agency discriminated against him on the basis of race (African American/Black) when he learned on February 15, 2013, that he was not selected for one of two available positions of Nuclear Mechanical Technician II (Maintenance) under Requisition No. 1000011671. The specific craft for the two available positions was that of a boilermaker. The position was located in the Mechanical Maintenance Department. The Hiring Manager (HM)(Caucasian), a Mechanical Maintenance Superintendent, conducted a Records Review of 10 candidates. The Records Review consisted of five criteria. The HM scored the 10 candidates referred to him on each criterion.2 The top four scores for Records Review were: 41 for Selectee-1 (S1), 31 for Complainant, 28 for Candidate-1, and 27 for Selectee-2 (S2). The HM decided that only the four top scorers were to be interviewed. The four top scorers were Caucasians, except for Complainant. The top four scoring candidates were interviewed by a three-member panel (all Caucasians) who used 10 questions provided by the HM. The four candidates referred for interviews received a score for each response provided to the 10 questions. S1 scored 46 and S2 scored 44. Complainant scored 33.5 and Candidate-1 scored 30. The candidates interviewed then received a combined score from Records Review and from the interviews. The HM weighted Records Review at 30 percent and weighted interviews at 70 percent. A combined score at or above 80.1 was deemed outstanding, from 71.2 was deemed well-qualified, and from 62.3 was deemed qualified.3 The two selectees received combined scores of 80.1 and 71.2 and were deemed outstanding and well-qualified and were chosen for the two positions. Complainant and the fourth candidate received combined scores of 65.5 and 58.8 respectively. Complainant was deemed qualified but was not selected. Candidate-1 fell below the score for qualified. After an investigation of his complaint, Complainant was provided with the report of investigation (ROI) and notified of his right to request a hearing before an administrative judge or to an Agency decision. Complainant requested an Agency decision, whereupon the Agency issued its decision finding no discrimination. CONTENTIONS ON APPEAL Complainant contends that he was more qualified than the selectees. He challenges the records review, interviews and scoring process, asserting that the selection process allowed the scores of less qualified Caucasians to be inflated while de-valuing his records. Complainant also asserts that the interviewing process was not followed as designed so as to have reduced the impact of subjectivity. He also asserts that all the Nuclear Mechanical Technicians II and III at the Browns Ferry Nuclear Plant were Caucasians. The Agency contends that its decision should be affirmed because it is supported by the ROI and Complainant has provided no credible, legal arguments, or new evidence to support his appeal. ANALYSIS AND FINDINGS Upon review, the Commission finds that the Agency's decision, arrived at without a hearing, was not proper because the investigative record is inadequate. EEOC Regulation 29 C.F.R. § 1614.108(b) requires that the Agency develop an impartial and appropriate factual record. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (MD 110), Ch. 6, § I (Aug. 5, 2015). An appropriate factual record is one that allows a reasonable factfinder to draw conclusions as to whether discrimination occurred. Id. An investigator must be thorough. "This means identifying and obtaining all relevant evidence from all sources regardless of how it may affect the outcome." MD 110, Ch. 6, § V.D. "To ensure a balanced record, it is necessary only to exhaust those sources likely to support the complainant and the respondent. An investigation conducted in this manner might reveal that there is ample evidence to support the complainant's claims and no evidence to support the agency's version of the facts, or vice versa. The best type of investigations allow for complainant to provide rebuttal evidence with sufficient time for the investigator to address any issues raised within the regulatory time frames." Id. Because we find the investigative record inadequate for the reasons which follow, we do not reach the ultimate issue of whether discrimination occurred. The record contains Complainant's telephone deposition. He stated in his deposition that to his knowledge, Browns Ferry Nuclear Plant, the location of the vacant positions, had "never" had an African American to work as a boilermaker and that he had applied for another position previously but was not selected. The record does not contain any profiles or demographic information regarding positions held, including boilermaker positions, at the Browns Ferry Nuclear Plant.4 This is information which should have been available to the Agency. There is no explanation in the record for its absence. The Commission notes that "the investigator is obligated to collect evidence regardless of the parties' positions with respect to the items of evidence." MD 110, Ch. 6, § IV. In addition the investigation has to include a "thorough review of the circumstances under which the alleged discrimination occurred, the treatment of members of a complainant's group as compared with the treatment of other similarly situated employees, if any." Id. at IV.C. The record also does not contain demographic information regarding previous selections, if any, made by the HM. Neither was he asked any questions during his deposition that could have elicited this information. Also, at least one panelist indicated that he had participated in the selection process before. He was also not asked any questions concerning his prior selections. There is also no information regarding whether the other panelist had been involved in prior selections and the demographics of his selections. No organizational charts providing demographic information concerning employees at the Browns Ferry Nuclear Plant are part of the record. The record also reveals that the HM used a "Records Review" to score the 10 candidates who were referred to him. He stated in his deposition that he was provided with a matrix along with the resumes and that he reviewed the resumes.5 The five categories for which points were earned under Records Review were: (1) education (degree, certification, diploma), (2) basic boilermaker experience, (3) nuclear experience, (4) heat exchangers, rigging and/or demineralizer (demin) experience and (5) disciplinary action within five years of the position vacancy.6 ROI at 124. Categories 1-5 were weighted 30, 20, 20, 10, and 20 respectively. Each candidate could score 0-5 for the first four categories. For disciplinary action, the scoring was different. A candidate could receive either receive only 0 or a score of 3-5; a candidate could not score either 1 or 2. The record reveals that all candidates scored a 5 in the category of discipline. We find the record insufficient regarding the scoring for discipline under Records Review. ROI at 124. There is no documentation or verification in the record regarding the disciplinary history of candidates other than Complainant. We note, however, that although Complainant's personnel record is not in evidence, the HM stated that he had seen his personnel file. ROI at 93. The record does not establish how the HM was able to score the three Caucasian candidates at 5 with no documentation in the record, especially since discipline was weighted as highly as boilermaker experience and nuclear experience and more than heating exchanger, rigging, and demin experience. There is also no explanation from the HM why discipline was used as a criterion.7 Another category under Records Review was education. Under the education category, a candidate could score 5 for an associate's degree or higher; 4 for technical or trade school; 3 for "some college;" 2 for completion of boilermaker apprenticeship; 1 for being a high school graduate, and 0 for none. Complainant received 2 points under the education category for "completed Boilermaker apprenticeship." S1 received 3 points for "some college" under the education category and S2 received 4 and Candidate-1 received 2. Under education and training on his resume, S1 indicated that he had completed a boilermaker's apprenticeship program and that from 1991-1992, he had completed basic courses at a community college. Although S1 received the higher score of 3 to Complainant's 2, there is no verification or testimony concerning S1's college education.8 S2 received 4 points. His resume indicates that he was in a sheet metal apprenticeship and received a certificate in welding from Calhoun Community College in 1991. ROI at 94. There is no documentation concerning the existence of the certificate or attendance at the community college in the record or that Calhoun Community College was a technical school. The education category was weighted at 30, the highest weight of the five criteria. The two selectees scored higher than Complainant. Nonetheless, there is no documentary or other evidence in the record to show upon what information the HM had relied to verify the college information.9 In Thirkill v. Tennessee Valley Authority, EEOC Appeal No. 0120121029 (June 6, 2012)(discrimination found in a nonselection where agency did not credit complainant with the number of years of work experience and specialized license, credited candidates with more experience than warranted, and deviated from applying agency's standard Planner Candidate Assessment instrument); Duncan v. Tennessee Valley Authority, EEOC Appeal No. 0120100344 (Dec. 14, 2011)(matrix used in selection process but complainant found to have been denied fair opportunity to demonstrate pretext). Complainant alleged that Browns Ferry Nuclear Plant has never hired Black applicants. There is no evidence in the record concerning whether Mechanical Technicians, such as Complainant was, were able to transfer to, or were able to become employed in, positions at Browns Ferry Nuclear Plant from the Colbert Fossil Plant and vice versa, considering that the vacancy announcement did not identify nuclear experience as a qualification.10 ROI at 35. The Commission next notes that the HM stated in his deposition that he prepared the 10 interview questions.11 There is no evidence whether, in the past, he had used the same or similar interview questions for the same or similar positions or whether he was deviating from interview questions which he may have used before. Regarding the scoring by the panelists, we note that for each question, there were spaces below each question for a score to be provided by a manager, "HR," and a supervisor. ROI at 131. Another space was designated for what appears to be for the total of the three scores. However, the panelists whose depositions were taken stated that they discussed each candidate's answer and provided a consensus score for each question and that was the score received from each panelist for each answer.12 Regarding computer software, interview question 4 concerned how familiar the candidate was with computer usage and what software the candidate could operate. For example, technical names such as Maximo, Primavera, Passport, eSoms, C-pal, Qual Matrix, and BSL were provided but no definition about these programs were provided or their utility to the position. Complainant has argued that his qualifications were superior to the qualifications of selectees and this information would be relevant to the factfinder in reviewing Complainant's and the selectees' qualifications. The HM stated in his affidavit that he received a matrix from the Recruiting Recruiter. ROI at 92. It is unclear what was contained on the matrix that he received and where it is in the record, although the the record does contain a documents, we have referenced earlier, containing the scores for the records review, the interviews, final scores, and ranking. ROI at 123, 124. Complainant challenged the subjectivity of the interviewing process. There is no testimony explaining whether interviews for this position were generally weighted at 70 percent, as opposed to 30 percent for experience. The record is also inadequate in other respects. It contains a copy of a Hiring Gateway Recruiter form which contains screening questions that were to be completed by job applicants. ROI at 35. These forms which appear to be a part of the application process for applicants are not contained in the investigative file.13 The presence of these documents could shed light on the education criterion used in Records Review because some of the questions that applicants were asked to complete on the Gateway form included what was the applicant's highest level of education; if no degree, the number of college hours completed; and whether a union apprenticeship program had been completed. It is therefore apparent that the entire application packages for the candidates interviewed were not provided for the investigative record, as evidenced by the absence of the Hiring Gateway Recruiter form. It is also not clear from the record even how many persons applied for the positions (although 10 were referred to the HM), and specifically what documentation and records were sent to the HM after applicants had qualified. It is also not clear from the record how panelists were selected. Even the panelists were unclear as to how they came to be on the panel. The Commission notes that on appeal, the Agency provided an Interview Guidelines document for the first time.14 The Interview Guidelines, for example, instructs the panelists to ask follow-up questions. Addressing Complainant's interview question 3, one panelist was asked whether any of the panel conducted any follow-up to see if Complainant had performed any rigging and about his work as a boilermaker. The panelist's response was that "we asked the same questions to each person the same way. We don't dig more so that they'll give more information." ROI at 60. Elaborating, the panelist stated further that "this is their opportunity to tell us what they can do, not our opportunity to dig to try to drag information out of people." Id. The Interview Guidelines submitted, however, reflect that the panelist could "restate a question and/or ask your own follow-up questions if you think the candidate has not addressed the question." The panelists indicate that they were provided with Interview Guidelines and it does not appear that the investigator was aware of the existence of this document. Whether the Interview Guidelines document was provided to the panelists is relevant since, the panelists gave Complainant lower scores for not elaborating in responses which they claimed were unclear to them or for which they needed more information. ROI at 59, 60. The record is also incomplete because Complainant's affidavit is missing pages 13-17 which begins with a question concerning the relationship of the selectees to an individual that Complainant was alleging influenced the selection process. ROI at 50, 51. Accordingly, based on the foregoing, we find the investigative record is inadequate and needs to be supplemented so that a determination on the merits of Complainant's complaint can be made. See generally, Stewart v. Dep't of Homeland Sec., EEOC Request No. 0520070124 (Nov. 14, 2011) (inadequate investigation); O'Neill v. Dep't of State, EEOC Appeal No. 0120083597 (Jan. 15, 2009) (inadequate investigation). The Commission reminds the Agency that while its burden of production is not onerous, it must provide a specific, clear, and individualized explanation for a nonselection so that the complainant is provided with an opportunity to prove that the agency's explanation was a pretext for discriminatory animus. See Boston v. U.S. Postal Serv., EEOC Appeal No. 0120042074 (May 26, 2004). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency's decision and REMAND this matter for a supplemental investigation consistent with our decision and the Order below. ORDER Within forty-five (45) calendar days of the date this decision becomes final, the Agency shall conduct a supplemental investigation of the complaint, consistent with our decision. The supplemental investigatory report shall include, but is not limited to, the entire application packages and any other relevant information submitted to the Hiring Manager during the selection process; documentation sent to Human Resources from the Hiring Manager; profiles concerning the 10 candidates who were referred to the Hiring Manager; organizational charts; If parties are no longer available to provide an affidavit/deposition or records are no longer available, the Agency shall provide an explanation and obtain information from other Agency personnel who are able to provide statements concerning missing documentation or who are able to describe the selection process. After the investigation is completed, the Agency shall provide Complainant with a reasonable opportunity to provide a rebuttal to the supplemental investigation. Within thirty (30) calendar days thereafter, the Agency shall issue a new decision, unless the parties have settled the matter. The Agency shall submit a report to the Compliance Officer as directed below. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations June 9, 2016 __________________ Date CERTIFICATE OF MAILING For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to the following recipients on the date below: Travis J Williams 1404 Burroughs Ave Muscle Shoals, AL 35661 Vyrone A. Cravanas, EOC Senior Manager Equal Opportunity Compliance Tennessee Valley Authority 400 W. Summit Hill Dr., WT 10D-K Knoxville, TN 37902 __________________ Date ______________________________ Compliance and Control Division staff signature Compliance and Control Division 01 & 07 Merits Case Code Sheet - INTERNAL CIRCULATION ONLY Initials Date TO: Carlton M. Hadden, Director, Office of Federal Operations Robbie Dix III, Director, Appellate Review Program FROM: Karolyn M Elskoe, Attorney 6/8/16 Shelley Kahn, Supervisor Heidi Schandler, Division Director Appeal Number(s) 0120140939 Agency Number(s) TVA-2013-0052 Hearing Number(s) Complainant(s): Travis J Williams Agency: TVA Decision: Vacated and remanded Statute(s) Alleged Title VII Basis(es) Alleged RB - Race/Black Issue(s) Alleged P3 (Where Discrimination Is Found Only): (A) Basis(es) For Finding: (B) Issues In Finding (Check All Applicable Codes) Merits Decision Codes X 4A - Merits decision ? 4B - OFO found discrimination List basis code(s):__________________ List issue code(s):__________________ ? Comp. damages (C3) awarded? X 4C - OFO found no discrimination/made no determination re: discrimination ? 4E - Agency found discrimination X 4F - Agency found no discrimination ? 4H - OFO affirmed Agency X 4I - OFO reversed Agency ? 4J - OFO modified Agency (NOTE: if affirmed in part and reversed in part, then (3L) code required if at least one issue is remanded) ? 3L - OFO remanded PART of Agency's merits Decision (NOTE: Do not use 3L with a 4B code) ? 3P - Adverse inference ? 4K - AJ found discrimination ? 4L - AJ found no discrimination ? 4M - AJ made no finding ? 4N - OFO affirmed AJ ? 4O - OFO reversed AJ ? 4P - OFO modified AJ ? 4T - AJ issued Summary Judgment decision ? 4U - OFO affirmed AJ Summary Judgment ? 4V - OFO reversed AJ Summary Judgment ? 3H - OFO denied attorney's fees ? 3I - OFO approved attorney's fees ? 3J - OFO modified attorney's fees ? 3T - Decision on comp. Damages - DENIED ? 3U - Decision on comp. Damages-APPROVED ? 3V - Decision on comp. Damages - MODIFIED ? 3W - Remand to AJ for remedies ? 3Z - Remand to Agency for remedies ? 5R - class complaint certified ? 5S - class complaint not certified (class requirements not met) ? 5T - class complaint not certified (procedural dismissal) ? 5U - class complaint certification remanded for additional discovery ? 4Q - Compliance required Imbedded Procedural Issues Codes Merit Affirmed Merit Reversed Merit Modified ? Procedural Affirmed = A ? Procedural Reversed = B ? Procedural Modified = C ? Procedural Affirmed = D ? Procedural Reversed = E ? Procedural Modified = F ? Procedural Affirmed = G ? Procedural Reversed = H ? Procedural Modified = I ARP Companion Case Checklist Complainant Agency Appeal/Request/Petition No. Travis J Williams, TVA 0120140939 OPEN CASES Appeal No. ORADS Status Related (Yes/No) Actions Taken None CLOSED CASES Appeal No. ORADS Status Related (Yes/No) Actions Taken None Class Action Cases Appeal No. ORADS Status Related (Yes/No) Actions Taken Karolyn M Elskoe June 8, 2016 Attorney Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 Only the race for the four candidates interviewed was provided in the record. 3 The record does not establish who determined what scores would constitute outstanding, qualified or well-qualified and how establishing these ratings were decided upon and whether this ranking was the usual procedure. 4 There are also no demographics for the Colbert Fossil Plant. 5 When asked what documents he relied on when providing a Records Review score, the HM's response was that he reviewed the resumes. For internal candidates, he also reviewed their personnel file to be sure there were no disciplinary actions taken against them. ROI at 93. 6 It is not clear from the record who created the criteria for the Records Review. When asked what were his hiring responsibilities, the HM stated that as the hiring manager for the position, he "go[es] through the matrix, finalize[s] the matrix, and then send[s] the matrix to the recruiters once I'm complete." ROI at 92. When asked what duties he performed regarding filling the position, he stated that he "took the matrix that was provided to me by the recruiting recruiter, and I did the records review." Id. 7 The description of "Duties" on the Hiring Gateway Recruiter form (ROI at 35) for the vacant position were specifically identified as follows: qualified as a journeyman boilermaker and trained in core tasks utilized by the Agency; receives additional training in machinist and steamfitter skills used by the Agency and performs tasks as qualifications are attained; will receive electrical and I&C training in preparation for becoming a Nuclear Mechanical Technician III, able to perform work independently on specific tasks when qualifications are obtained. ROI at 35. 8 Complainant has asserted that a score of 4 for technical or trade school would more accurately reflect the full scope of his training that he earned while at the Agency, noting that he had completed a 30-month Mechanical Maintenance Technician Training III program. 9 With his appeal, Complainant submitted a Certificate of Apprenticeship for Construction Boilermaker Apprentice course, dated September 21, 2003; a certificate awarded by the U.S. Department of Labor on September 29, 2003 indicating that Complainant had completed a boilermaker apprenticeship; a September 19, 2003 Certificate of Completion for instruction in steel erection and rigging fundamentals; and a certificate from Local Lodge No. 455 for satisfactory completion of his apprenticeship as a Field Construction Boilermaker. 10 Two panelists who were employed at the Colbert Fossil Plant at the time of the interviews were employed at the Browns Ferry Nuclear Plant at the time of their depositions. One became a Supervisor of Mechanical Maintenance and the other panelist became the Assistant Superintendent of Mechanical Maintenance. The Supervisor of Mechanical Maintenance stated that while he was at the Colbert Fossil Plant where he was a first line supervisor, he was "getting groomed" for the position that he was now occupying. ROI at 56. 11 Some of the interview questions included: 1. Are you opposed to a multiskilled crew? Do you have any concerns related to nuclear power, radiation, or contamination? 2. Do you understand and accept the fact that future employees must progress to Level III technician as a condition of continued employment (up or out)? 3. How familiar are you with computer usage and what software can you operate? 4. An S4 medical exam, working in high temperature areas, various shifts, roadwork, and overtime will be required. Do you have any condition that would prevent you from meeting this requirement? Here, the Commission notes restrictions under the Rehabilitation Act concerning pre-offer questions regarding health. 12 The deposition of the third panelist was not taken. A document contained in the record purports to be a document indicating that he retired but the only name identified is the name of the HM and the copy provided is darkened and not entirely readable. ROI at 6 (Exhibit 7), 155-158. 13 There are no affidavits from personnel who were involved in the hiring process or who could provide information on the process. The Hiring Gateway Recruiter document identifies the names of two HR staff connected to the vacancy. They were an "HR Rep" and a Recruiter. ROI at 35. 14 This document was not contained in the ROI and there is no indication in the record whether the panelists or the investigator were provided with the guidelines, whether they were the standard guidelines used for all interviews, and whether they were in effect at the time of the interviews. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120140939 2 0120140939 11 0120140939