Dunlap v. Tennessee Valley Authority
519 F.3d 626 (6th Cir. 2008)
Jonathan Booker
Business Employment Law – HRM 510
Professor Mecker
February 9, 2011
Dunlap v. Tennessee Valley Authority
519 F.3d 626 (6th Cir. 2008) Review of the Case David Dunlap brought suit under Title VII of the Civil Rights Act of 1964, alleging racial discrimination by the Tennessee Valley Authority (TVA). The district court found that Dunlap had been subjected to discrimination under both disparate treatment and disparate impact analyses, concluding that the TVA’s subjective hiring processes permitted racial bias to both Dunlap and other black job applicants to occur. The TVA appealed, arguing that the district court erred in each of these analyses. David Dunlap is a black man who has worked as a boilermaker and boilermaker foreman for over twenty years. Most of his work experience has been with TVA through contract or temporary work through his union. He has tried to gain permanent employment with TVA since the 1970s’ to no avail. He applied for a position and submitted his resume and application for a job opening at TVA as a boilermaker. Dunlap was not chosen for the position and he brought suit against TVA. Dunlap alleges that the interview process was biased and TVA selected less qualified candidates some of whom had family affiliations to the Cuberland selection committee members.
1. What were the legal issues in this case?
According to Walsh (2010), David Dunlap brought suit under Title VII of the Civil Rights Act of 1964, alleging racial discrimination by the Tennessee Valley Authority (TVA). The district court found that Dunlap had been subjected to discrimination under both disparate treatment and disparate impact analyses, and concluded that the TVA’s subjective hiring processes permitted racial bias against both Dunlap and other black job applicants. The TVA appealed the ruling, arguing that the district court erred in each of these analyses. The issue is not whether the district court reached the best conclusion, but whether the evidence before the Unites States Court of Appeals supports the disparate treatment and disparate impact findings. Dunlap and TVA must now present their case to the Court of Appeals for a final ruling on whether there was disparate treatment and disparate impact and if the award of damages and fees were correct from the lower court.
2. Explain why the plaintiff’s disparate (adverse) impact claim fails?
The disparate impact theory requires a plaintiff to demonstrate that a facially neutral employment practice falls more harshly on one group than another and that the practice is not justified by business necessity. Dunlap did not present evidence that the practices used in his interview were ever used for other hiring decisions, so no statistical proof could show that a protected group was adversely impacted. Dunlap's expert, William Anthony, testified about the lack of standards during Dunlap's interview only, and produced a report whose scope addressed only the “policies and procedures in the promotion decision involving Mr. Dunlap.” No proof was introduced at trial about TVA-wide hiring practices, and the district court's opinion identifies only the Cumberland committee's questions and scoring of the applications during Dunlap's interview process. On this issue the court concluded that Dunlap challenged only the process used in his own interview, and the district court clearly erred in finding a prima facie case of disparate impact; therefore, the disparate (adverse) impact claim failed and the finding was reversed. (Walsh)
3. Explain why the plaintiff’s disparate treatment claim succeeds?
A plaintiff has to demonstrate that disparate treatment occurred and that an employer has treated people less favorably than others because of their race, color, religion, sex or national origin. There must be an establish prima facie case of racial discrimination, the plaintiff must prove the stated reason was in fact pre-textual and the employer must articulate some legitimate, nondiscriminatory reason for its actions. A person must have proof of discriminatory motive and it is critical that evidence is presented. Dunlap showed pretext by demonstrating that his matrix score was manipulated to keep him out of the top ten applicants. Evidence showed that the assigned weight given to the interview was changed by the questioners to favor a more subjective process, interview questions were not objectively evaluated, and scores were altered to produce a racially biased result. An example of this was that the selection committee determined that the interview process would account for seventy percent of an applicant’s final score, and technical expertise would account for thirty percent and thereby transferring the bulk of the final score from an objective measurement (merit and experience) toward a subjective measurement (communication skills). There was an email from the human resource management director stating explicitly that interviewers should not award point for being a “diversity candidate,” and TVA manipulated the scores to ensure diversity by selecting only one diversity candidate. TVA mandates that vacancies be filled based on merit and efficiency and stating that education, training, experience, ability and previous work performance serve as a basis for appraisal of merit and efficiency. This mandate should have carried the most weight of the interview and hiring process for the boilermaker position and if presented in this manner Dunlap would have been chosen. The interview process that Dunlap was a part of made this measurement count only thirty percent. Dunlap as the plaintiff had to establish a prima facie case of discrimination by showing (1) that he is a member of a protected group, (2) that he was qualified for the position at issue, and (3) that he was treated differently than comparable employees outside of the protected class. The district court found that Dunlap established each of these factors by showing that (1) Dunlap is African-American, (2) he was qualified for the job, and (3) white applicants with less experience were hired for the boilermaker positions. The district court did not clearly err in this determination and that finding was AFFIRM (Walsh).
4. What should the TVA have done differently with regard to interviewing and selecting candidates for these jobs?
The employer could have noted on everyone’s interview sheet a legitimate reason for not hiring them. They should ensure that previous job experience carries the most weight in deciding hiring and not the interview process itself. TVA needs to define prior to the interview the process for scores of “Outstanding, well-qualified and qualified and scores should be placed on the interview sheet prior to ranking. They should stop the preferential hiring process and select candidates based on their merit and not on the color of their skin. Reassign those staff members who practice discrimination to position that does not require them to be a part of the hiring process.
Reference
Walsh, D. (2010). Employment Law for Human Resource Practice, Mason, Ohio:
Cengage Learning
