Gautney v. Tennessee Valley Authority Board of Directors

Filing 31

MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 3/31/14. (SAC)

FILED
2014 Mar-31 PM 04:32
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LADONNA L. GAUTNEY,
Plaintiff,
v.
TENNESSEE VALLEY AUTHORITY
BOARD OF DIRECTORS,
Defendant.

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Case No. 2:13-CV-324-WMA

MEMORANDUM OPINION
This case comes before the court on the motion of defendant
Tennessee Valley Authority Board of Directors (“TVA”) for summary
judgment.

Plaintiff, Ladonna Gautney (“Gautney”), instituted the

action claiming that she was discharged by TVA in retaliation for
her protected charge of sex discrimination in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
(“Title VII”).1

TVA moves for summary judgment based on the Title

VII national security exemption, 42 U.S.C. § 2000e-2(g), and for an
absence of relevant disputed facts.

For the reasons stated below,

the court finds that the national security exemption does not
preclude judicial review, but that TVA is entitled to summary
judgment on the merits.

1
The complaint alleges discrimination as well as retaliation, but the
final agency decision on Gautney’s discrimination charge was issued on March
13, 2012, and this action was initiated well after the ninety-day period from
receipt in which to file a civil action. See 42 U.S.C. § 2000e-5(f)(1).

BACKGROUND
Gautney worked as a security guard at the TVA Browns Ferry
Nuclear Plant from May 2004 to January 4, 2012.

Security guards

must pass a yearly tactical weapons qualification course (“TWQC”)
in no more than four attempts.

After Gautney failed all four TWQC

tests in 2011, TVA discharged her.

Gautney contends that TVA

caused her to fail the TWQC and subsequently discharged her in
retaliation for her complaint of sex discrimination that she filed
with the Equal Opportunity Compliance (“EOC”) on June 30, 2011.
Aftermath of 2011 EOC Complaint
Gautney claims that she suffered retaliation for her EOC
complaint of June 30, 2011, by being shunned, then discharged.
Many of Gautney’s colleagues and trainers treated her differently
after the EOC complaint by refusing to talk to her and by generally
excluding her from the group camaraderie. Two of the five trainers
who scored Gautney’s TWQC tests in 2011 took part in this shunning:
Joe

Lovett

(“Lovett”)

since

April

20112

and

Pete

Thompson

(“Thompson”) since early December 2011 when he gave his deposition
in the EOC investigation.

The other three trainers who scored

Gautney’s TWQC tests, including Terry Nixon (“Nixon”), did not

2
Gautney describes the change in her colleagues’ behavior as beginning
in April 2011, even though she filed the actual EOC complaint in June 2011.
Before filing her EOC complaint, Gautney complained of sex discrimination to
her supervisor and met with an EOC counselor in April 2011. Presumably, the
shunning behavior began in response to Gautney’s informal complaints in April
2011 and continued after the actual EOC complaint. The EOC complaint is the
only protected activity claimed in the complaint.

2

treat her differently after her EOC complaint.

Although one

trainer refused to help Gautney with weapons training, she does not
claim that any other trainer did so. Doc. 27-19, pp.225-28.
TWQC Tests
The TWQC tests include a tower portion and a ground portion.
The tower portion features prominently in Gautney’s claims. In the
tower portion, the trainer pre-loads a magazine for the first
weapon——a thermal rifle——with four live rounds then four dummy
rounds. The exercise calls for the guard to load the thermal rifle
and fire four rounds then put it down to switch weapons.
rounds

function

as

a

safety

precaution

in

case

The dummy
the

rifle

accidentally discharges when the guard quickly puts it down. After
shooting from the thermal rifle, the guard picks up the second
weapon——a trijicon——and fires four rounds.

Any rounds discharged

after the 50-second time limit for the tower portion causes a onepoint deduction but does not result in automatic failure of the
test.

The ground portion has a time limit of 6 minutes and 45

seconds and requires the guard to fire two weapons——an M-16 and a
handgun——in various positions.

The TWQC policy provides for

trainers to put one dummy round in the magazine of each weapon
during the ground portion to simulate misfires, but the guard does
not know where in the magazine the dummy round will be.

To pass

the test, a guard must shoot with 80% accuracy out of 60 shots and
finish within the time limits.
3

Gautney attempted to pass the TWQC four times in November and
December 2011.

Immediately before each test, she completed a

practice round.

Her first TWQC test took place on November 21,

2011.

After failing it, she took the test again on the same day

per standard procedure and failed the second time.

Gautney does

not claim that she experienced any irregularities with the first
test or the second test, although she does claim that she was sick
that day and it was “apparent” that she was in no condition to
proceed. Doc. 28-1, ¶4.

Due to her failing the first and second

TWQC tests, TVA issued a 30-day Notice of Termination that gave
Gautney until December 21 to pass the TWQC.
Gautney’s third TWQC test took place on December 8, 2011. She
claims that she experienced a testing irregularity during the
ground portion but does not remember if it occurred during the
practice round or the qualifying round.3

The irregularity only

bears on Gautney’s failing the test if it occurred during the
qualifying round.

In either scenario, the evidence does not show

that the dummy round caused Gautney to fail.

Gautney’s weapon

fired a dummy round in the first prone position of the ground
portion, the timing of which she claims was atypical. The trainers

3

In her deposition, Gautney admitted that she fired the dummy round
during the third TWQC test’s practice round, which would not have affected her
qualifying score. In her declaration, however, she states that she does not
remember whether it occurred during the practice round or the qualifying
round. Pursuant to FED. R. CIV. P. 56, the court makes the reasonable
interpretation favorable to Gautney that she could have fired the dummy round
during the qualifying round because, otherwise, the dummy round would have no
significance to her failing the third TWQC test.

4

stopped the test clock while they changed the magazine.

Although

Gautney testifies that the dummy round made her exceed the time
limit

on

the

ground

portion,

the

uncontradicted

Gautney’s test scores indicates otherwise.

evidence

of

In the practice round,

she exceeded the time limit by 58 seconds, far longer than the
number of seconds that shooting one dummy round would have cost
her.

She also had a 65% shooting accuracy, nine hits less than the

passing score of 80%.

In the qualifying round, Gautney met the

time limit, so the dummy round did not make her fail on that basis.
She also had a 63.3% shooting accuracy, ten hits less than the
passing score; her shooting percentage alone caused her to fail by
more than one dummy round can explain.

Whether the dummy round

fired during the practice round or the qualifying round, it is not
a reasonable inference that it caused her to fail.

Gautney also

notes that, during both rounds of the third TWQC test, the trainers
did not talk to her, shout encouragement, or “provide [her] with
emotional support” as they had in previous years. Doc. 28-1, ¶7.
Gautney’s claims center on her fourth TWQC test on December
13, 2011.

Although she failed the practice round by one shot, she

still felt “ready” that day. Doc. 27-19, p.107.

The trainers who

scored Gautney’s fourth test were Nixon for the tower portion and
Thompson, Lovett, Roger Nichols, and Robert Dawson for the ground
portion.

Of these five trainers, only Thompson and Lovett had

shunned Gautney after her EOC complaint. For the qualifying round,

5

her uncontradicted scores show that she exceeded the tower time
limit by one second and had a 78.3% shooting accuracy, one hit less
than the passing score.

Gautney does not claim that her shooting

errors on the ground portion resulted from irregularities; she
focuses on the tower portion.
As described above, the tower portion of Gautney’s test
required her to fire four rounds from a thermal rifle, then fire
four rounds from a trijicon in 50 seconds.

Before Gautney’s test,

the trainer in the tower, Nixon, pre-loaded four live rounds and
four dummy rounds in the thermal rifle magazine per standard
procedure.

He started the timer when Gautney positioned the

thermal rifle.

Nixon testifies that he heard Gautney pull on the

charging handle twice, which ejected one of the four live rounds.
Gautney remembers pulling the charging handle only once.

Nixon

testifies that he heard her fire three live rounds and one dummy
round. Gautney remembers shooting two or three live rounds and one
dummy round.

When Nixon heard the ping sound of the dummy round

firing, he stopped the timer and called a cease-fire to load
another live round.

Nixon re-started the timer after Gautney had

repositioned herself.4 Gautney then fired the remaining live round

4

Gautney’s testimony is unclear whether Nixon re-started the timer
atypically early after she fired the dummy round. Gautney claims that Nixon
re-started the timer before she had re-sighted her target and, in the past,
trainers had waited until she had the target in sight. However, she testified
that (1) “you turn the clock back on as soon as you pick up” the rifle, Doc.
28-1, p.84; (2) "as soon as he turns the clock back on, then you've got to try
to find [the target], and then start shooting [],” id. at p.85; and (3) she
does not remember if she had already found the target when Nixon re-started

6

from the thermal rifle, switched to the trijicon, and fired four
live rounds from the trijicon.

She fired the fourth round after

the time limit, which deducted one point from her score.

Because

Gautney failed the fourth TWQC test by one point, she contends that
the dummy shot in the tower caused her to fail.
Leading up to her TWQC tests on December 8 and December 13,
Gautney found limited opportunities to train on the practice range.
She had one 30-minute training session with Thompson on November
30,

2011.

Gautney

says

that

Thompson

appeared

rushed

“aggravated at having to help [her].” Doc. 28-1, ¶ 6.

and

As for

independent practice, Gautney testifies that she kept trying to
schedule time on the practice range, but Nixon “continually told”
her that the range was in use by military groups and new hire
groups. Doc. 28-1, ¶5.

She further states that Nixon “did not

point out any open times for the range that I could use. He left me
with the impression that I was on my own in terms of finding a way
to practice.” Id. Nixon testifies that TVA policy provides for retesting guards to have a “reasonable opportunity” to use the
practice range but does not allow trainers to cancel previously
scheduled trainings of large groups to accommodate re-testing
guards. Doc. 27-1, ¶14.

the timer, id.

7

Gautney’s Discharge
Following Gautney’s fourth TWQC test on December 13, 2011,
Nixon reviewed her targets to verify the scores and gave the test
results to Patrick Parker (“Parker”), Gautney's manager.

Parker

issued Gautney’s discharge on January 4, 2012. Gautney claims that
Parker set her up for discharge by arranging for her to receive the
dummy round in the ground portion of the third TWQC test and the
dummy round in the tower portion of the fourth TWQC test; she does
not claim that Nixon participated.

TVA responds that Parker

discharged Gautney in accordance with TVA policy and he had no
discretion to allow her to continue her duties without passing the
TWQC.

Neither Parker nor Gautney’s shift supervisors, Parker’s

subordinates, were present at her fourth TWQC test.
Gautney is the only security guard at the Browns Ferry Nuclear
Plant whom TVA has terminated for failing the TWQC after four
attempts.

Seven other guards since 2008 have failed at least one

TWQC test but passed a subsequent test.

For reasons other than

failing the TWQC, TVA has discharged six other guards since 2009.
DISCUSSION
To grant summary judgment, a court must determine that there
is no genuine dispute of material fact and that the movant is
entitled to judgment as a matter of law. FED. R. CIV. P. 56.

A

genuine dispute of material fact exists if “a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty
8

Lobby, Inc., 477 U.S. 242, 248 (1986).

For the purposes of summary

judgment, the court views all admissible evidence in the light most
favorable

to

the

nonmoving

party

and

draws

all

reasonable

inferences in that party’s favor. Scott v. Harris, 550 U.S. 372,
378 (2007) (quoting United States v. Diebold, Inc., 369 U.S. 654,
655 (1962)).

The court's function does not extend to “weigh[ing]

the evidence and determin[ing] the truth of the matter” but is
limited to “determin[ing] whether there is a genuine issue for
trial.” Liberty Lobby, 477 U.S. at 249.
TVA moves for summary judgment based on (A) the national
security exemption to Title VII and (B) the merits of Gautney’s
retaliation claim.
A.

National Security Exemption
TVA moves for summary judgment claiming that the national

security

exemption

to

Title

VII

precludes

its

liability

for

Gautney’s discharge. The national security exemption provides that
it is not unlawful for an employer to discharge an employee if
(1)

the position or access to the premises “is subject to any
requirement imposed in the interest of the national
security of the United States under any security program
in effect pursuant to or administered under any statute
of the United States or any Executive order of the
President;” and

(2)

the employee has not fulfilled or has ceased to fulfill
9

that requirement.
42 U.S.C. § 2000e-2(g).

TVA claims that, when Gautney failed her

four TWQC tests, she ceased to fulfill a requirement imposed in the
interest of national security under a security program administered
under the Atomic Energy Act, 42 U.S.C. § 2011 et seq.
The Atomic Energy Act allows the issuance of commercial
nuclear licenses only if the license is consistent with “the common
defense and security” of the public. 42 U.S.C. § 2133.

The Nuclear

Regulatory Commission (“NRC”) performs the licensing and regulatory
functions under the Atomic Energy Act. Energy Reorganization Act of
1974, 42 U.S.C. § 5801 et seq. (1970 ed., Supp. V).

The NRC’s

“prime area of concern in the [nuclear] licensing context ... is
national security, public health, and safety.” Vermont Yankee
Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S.
519, 550 (1978) (citing 42 U.S.C. §§ 2132, 2133, 2201) (emphasis
added).

To this end, the NRC requires that nuclear licensees

implement an approved tactical weapons qualification test for their
security personnel each year. 10 C.F.R. Pt. 73, App. B § VI(F).
Until employees satisfy this and other qualification requirements,
nuclear licensees “may not allow any individual to perform any
security function, assume any security duties or responsibilities,
or return to security duty.” Id. at § VI(A)(6).
its

focus

on

qualification

national

security

requirements

for

10

strongly
nuclear

The NRC’s role and
suggest

licensees’

that

the

security

personnel are imposed in the interest of national security.

The

TWQC requirement for TVA’s security guards is a NRC-approved
tactical weapons qualification test and, therefore, satisfies the
first element of the national security exemption.5
Gautney contends that the national security exemption does not
apply based on the second element because she never “ceased to
fulfill” the TWQC requirement. See 42 U.S.C. § 2000e-2(g)(2).
Rather, she claims that TVA sabotaged her TWQC tests.

This

contention necessitates that the court review TVA’s testing process
and its finding that Gautney failed the TWQC, a prospect that
implicates the policy behind the national security exemption.

“A

Title VII claim is nonjusticiable if reviewing it requires the
court to review the merits of a decision by the executive branch”
on discretionary matters of national security. Arafi v. Mandarin
Oriental, 867 F. Supp. 2d 66, 74 (D.D.C. 2012); see Dep't of Navy
v.

Egan,

484

U.S.

518,

527

(1988).

Accordingly,

the

court

acknowledges that it should not review the content of the NRCapproved

TWQC

or

the

NRC’s

provisions

on

qualification

requirements. However, the court can review whether TVA retaliated
against Gautney in its administration of her TWQC tests without
intruding on the NRC’s discretion as a government agency.

TVA and

5
Gautney argues that the national security exemption only applies to
security clearance decisions. Although this argument has support in EEOC and
legislative materials, the plain language of the statute contains no such
limitations. Compare 42 U.S.C. § 2000e-2(g), with EEOC, Policy Guidance on the
Use of the National Security Exception Contained in § 703(g) of Title VII.

11

other commercial nuclear licensees do not have carte blanche to
retaliate or discriminate against their employees simply because
they do so under the guise of implementing a NRC requirement. See
EEOC, Policy Guidance on the Use of the National Security Exception
Contained in § 703(g) of Title VII (“Employers cannot, merely by
invoking national security, exempt themselves from coverage of the
nondiscrimination provisions of [Title VII].”)
Two of the limited cases that address the national security
exemption and licensees have particular relevance to Gautney’s
claim.6

In the first case, a security guard was discharged for

failing a weapons qualification test for a rifle that the employerlicensee had

recently

added as

a

required

weapon.

Fisher

v.

Securitas Sec. Servs. USA, Inc., No. 4:08-cv-1634-RBH-TER, 2009 WL
5868580, at *5 (D.S.C., Dec. 2, 2009).

The guard in Fisher did not

dispute that

the

she

ceased to

fulfill

NRC

requirement;

her

complaints did not center on the testing process, but on the test
content and whether the licensee uniformly discharged guards who
failed the test. Id.

The Fisher court7 found that the licensee did

not show that the national security exemption should apply because

6

The majority of published cases on the national security exemption
involve a government agency directly making security clearance decisions. See,
e.g., Dep't of Navy v. Egan, 484 U.S. 518 (1988).
7

Fisher consists of a Report and Recommendation by a magistrate judge.
Fisher v. Securitas Sec. Servs. USA, Inc., 2009 WL 5868580, at *5 (D.S.C.,
Dec. 2, 2009). The parties did not object to the national security exemption
section. The district judge adopted the national security exemption section
finding after reviewing for clear error. Fisher v. Securitas Sec. Servs. USA,
Inc., No. 4:08-cv-01634-RBH, 2010 WL 568234, at *4 (D.S.C., Feb. 12, 2010).

12

“the record is devoid of any evidence showing that the specific
requirement regarding the .308–caliber rifle is pursuant to the
[NRC] requirements.” Id. (emphasis added).
the

NRC

explicitly

requires

that

In the present case,

security

personnel

pass

an

approved “tactical weapons qualification,” like the TWQC. 10 C.F.R.
Pt. 73, App. B § VI(F).
suggests

that

this

Upon initial examination, then, Fisher

court

should

apply

the

national

security

exemption. However, Fisher involved questions about the content of
the test, not the licensee’s administration of the test.

With

Fisher involving a more substantive inquiry and different policy
concerns, the parallel to the present case is inexact, and it does
not necessarily follow that Fisher would counsel applying the
national security exemption to the facts presented here.
The second relevant case involving the national security
exemption and licensees has dissimilar facts but includes an
analysis that this court finds persuasive. See Moore v. Exelon
Generation Co., LLC, No. 12 C 1955, 2012 WL 5304202, at *3 (N.D.
Ill. Oct. 25, 2012). In Moore, a commercial nuclear licensee hired
a person then discharged him after he was denied security clearance
to access the premises. Id. at *1.

Although the facts squarely

implicated

exemption,

the

national

security

see

Bennett

v.

Chertoff, 425 F.3d 999, 1000 (D.C. Cir. 2005), the Moore court
emphasized that employers cannot enforce position requirements
selectively and cannot evade Title VII simply because a requirement
13

involves national security. Moore, 2012 WL 5304202, at *3.

The

Moore

the

court

further

said

that

it

“certainly

can

make

determination that the national security criteria are not being
applied uniformly without having to delve into whether the criteria
are over restrictive, for example.” Id.

The Moore court, then,

concluded that it could properly review the merits of the Title VII
claim notwithstanding the national security exemption. Id.

This

analysis corresponds to EEOC policy guidance and does not interfere
with the executive branch’s discretion. See EEOC, Policy Guidance
on the Use of the National Security Exception Contained in § 703(g)
of Title VII; Dep't of Navy v. Egan, 484 U.S. 518, 527 (1988).
In light of the statute and limited case law, the court
concludes that the national security exemption does not apply so as
to preclude its review of Gautney’s claim that TVA caused her to
fail the TWQC in retaliation for her EOC complaint. The court will
confine

itself

to

reviewing

possible

defects

in

TVA’s

administration of the TWQC and not the TWQC’s content or the
related NRC regulations.
B.

Retaliation Claim
Title VII claims based on circumstantial evidence, as in this

case, are analyzed using the three-step framework from McDonnell
Douglas Corp v. Green, 411 U.S. 792 (1973). Kidd v. Mando Am.
Corp., 731 F.3d 1196, 1202 (11th Cir. 2013).

14

Gautney must first

make out a prima face case of retaliation and thereby raise a
presumption

of

discrimination.

Id.

TVA

must

then

provide

a

legitimate, non-discriminatory reason for the adverse employment
action, which, if successfully shown, rebuts the presumption of
discrimination. Id.

Lastly, Gautney must show that TVA’s facially

adequate reason is a pretext and was not the real reason for the
adverse action. Id.
facie case

and

(2)

This section examines (1) Gautney’s prima
TVA’s

offered

reason

together with Gautney’s evidence of pretext.

for

discharging

her

The court finds that

Gautney has failed to present a prima facie case and, even if she
had, she has not offered sufficient evidence of pretext to defeat
TVA’s motion for summary judgment.
1.

Prima Facie Case
To make a prima facie case for Title VII retaliation, Gautney

must show (I) that she engaged in statutorily protected activity;
(ii) that she suffered adverse employment action; and (iii) that a
causal relationship exists between the events. Holifield v. Reno,
115 F.3d 1555, 1566 (11th Cir. 1997) (citations omitted). A causal
relationship can be established through evidence that TVA’s “desire
to retaliate” against the protected expression was the “but-for
cause” of the adverse action. See Univ. of Texas Southwestern
Medical Ctr. v. Nassar, 133 S. Ct. 2517, 2528 (2013).
Gautney has established the first and second elements.

She

engaged in statutorily protected activity when she filed her EOC
15

charge on June 30, 2011.8

She suffered adverse action when she was

discharged.9 See Nix v. WLCY Radio/Rahall Comms., 738 F.2d 1181,
1185 (11th Cir. 1984).
Gautney has, however, failed to establish the third element,
a causal connection between her EOC complaint and her discharge.
Gautney’s discharge took place five months after she submitted her
EOC complaint. Such a five-month interval does not suffice to show
causation “in the absence of any other evidence of causation.”
Drago v. Jenne, 453 F.3d 1301, 1308 (11th Cir. 2006).

Gautney

seeks to provide “other evidence” by showing that her EOC complaint
and

her

discharge

were

“linked

by

a

chain

of

intervening

retaliatory acts.” Edwards v. Nat'l Vision, Inc., 946 F. Supp. 2d
1153, 1175-76 (N.D. Ala. 2013) (citing Wideman v. Wal–Mart Stores,
Inc., 141 F.3d 1453, 1457 (11th Cir. 1998)).

The intervening

retaliatory acts consist of (1) her purported disparate treatment

8
Gautney’s EOC complaint is the only protected activity at issue. Other
employees’ depositions in the investigation of Gautney’s EOC complaint do not
constitute protected activities for Gautney, although they do for the deposed
employees. Simpson v. State of Ala. Dep't of Human Resources, No. 12-11710,
2012 WL 6621400 at *955 (11th Cir. Dec. 18, 2012); Merritt v. Dillard Paper
Co., 120 F.3d 1181, 1184 (11th Cir. 1997). Gautney’s talk with Nixon that one
trainer had shunned her was not pled as protected activity in the complaint
and, even if it had been, Gautney’s pertinent testimony does not have enough
specificity for an essential element of her claim. See Doc. 27-19, p.226.
9

Gautney's colleagues and trainers shunning her, separate from other
acts, does not qualify as adverse action. Burlington Northern & Santa Fe Ry.
Co. v. White, 548 U.S. 53, 68 (2006) ("[S]nubbing," "petty slights, minor
annoyances, and simple lack of good manners" are not actionable). Gautney
does not claim that the shunning resulted in lost professional opportunities.
The trainers continued to train her. For the one exception, Jason Steele,
Gautney admitted that other trainers were available to assist her when Steele
would not. Also, the complaint only alleges discharge as an adverse action.

16

in not being offered the opportunity to cheat on her TWQC tests,
(2) her pervasive shunning by colleagues and trainers,(3) the
purported sabotage of her TWQC tests, (4) inadequate training
opportunities, and (5) her purported disparate treatment in failing
the

TWQC

tests

and

being

discharged

on

that

basis.10

Each

contention is addressed in turn.
(1) Disparate Treatment in Cheating
Gautney offers as evidence of intervening retaliatory acts her
testimony that other security guards may have cheated to pass their
TWQC tests, and the trainers did not offer to let her do likewise.
This contention suffers from two defects.

First, Gautney has not

offered evidence that any security guard has cheated on the TWQC
tests.

She only has personal knowledge of guards cheating on the

written tests.

Evidence of cheating on written tests does not

constitute evidence of cheating on the TWQC tests. Second, Gautney
testifies that she did not ask her trainers for the opportunity to
cheat on her 2011 TWQC tests.

Without evidence that cheating on

TWQC tests occurred, and without evidence that Gautney asked to
cheat, the fact that her trainers did not offer to let her cheat on

10

TVA argues that positive employment actions cut against an inference
of retaliation. Tucker v. Sejong Ala., LLC, No. 11-cv-268, 2012 WL 2389327 at
*7 n.10 (M.D. Ala. May 4, 2012), Bennett v. Saint-Gobain Corp., 507 F.3d 23,
32-33 (1st Cir. 2007). Even if TVA is correct, the evidence does not show
that TVA took any positive employment actions concerning Gautney between her
EOC complaint and her discharge. Gautney had more income in 2011 than in
2010, but the higher income derived from overtime, not a pay raise. Gautney
passing other tests does not qualify as positive employment actions by TVA;
she maintained her qualifications but did not experience positive change.

17

her TWQC tests does not qualify as an intervening retaliatory act.
(2) Shunning
Gautney contends that many colleagues and trainers shunned her
after she informally complained of sex discrimination to Parker and
after she later filed a EOC complaint.

This shunning included

acting standoffishly towards Gautney, not talking to her socially,
not cheering her on during practices and tests, and excluding her
from the group camaraderie. Shunning by those individuals involved
in

scoring

Gautney’s

TWQC

tests

and

in

discharging

particular significance for demonstrating causation.

her

has

Two of the

five trainers who scored Gautney’s fourth TWQC test on December 13,
2011, Lovett and Thompson, shunned her.

The manager who issued

Gautney’s discharge, Parker, shunned her.
Gautney

has

presented

circumstantial

evidence

that

the

shunning by these three individuals was causally related to her EOC
complaint.

One of the trainers, Lovett, began shunning Gautney in

April 2011 when Gautney informally complained to Parker about sex
discrimination, which formed the basis for her EOC complaint.
Thompson began shunning Gautney in early December 2011 when he gave
his deposition in the EOC investigation of Gautney’s complaint.
The evidence connecting Parker’s shunning of Gautney to her EOC
complaint is more tenuous. The comments that Gautney identifies as
showing Parker’s animus, e.g., Doc. 27-19, p. 253-54 (“Why is it
always you?”), are the same comments that she claims Parker made in
18

connection with her informal complaints before she filed an EOC
complaint, see Doc. 27-24, p.6.

This evidence, however, permits

the reasonable inference that Parker’s repeated comments to Gautney
show

animus

related

to

Gautney’s

informal

complaints

of

sex

discrimination, and Gautney’s subsequent EOC complaint.
The

shunning

by

three

individuals

involved

in

scoring

Gautney’s TWQC tests and in discharging her does not establish
causation for her prima facie case of retaliation without another
“link[]” in the “chain of intervening retaliatory acts.” Edwards v.
Nat'l Vision, Inc., 946 F. Supp. 2d 1153, 1175-76 (N.D. Ala. 2013)
(citing Wideman v. Wal–Mart Stores, Inc., 141 F.3d 1453, 1457 (11th
Cir. 1998)).

For the shunning to provide evidence of causation,

the individuals who shunned her must be linked to her failing the
TWQC tests and her resulting discharge.

In other words, Gautney

has shown evidence of animus, but that animus is not shown to have
had a connection to her discharge.

To consider such connections,

the court now turns to Gautney’s evidence of her TWQC tests being
sabotaged.
(3) Sabotage
Gautney

claims

that

TVA

sabotaged

her

TWQC

tests

in

retaliation for her EOC complaint with the intention of causing her
discharge.

These claims of sabotage center on her third TWQC test

and her fourth TWQC test.

Although Gautney states that she was

visibly sick on the day of her first and second TWQC tests, she did
19

not request a postponement, and failing to affirmatively offer her
a postponement does not constitute sabotage.
Gautney’s third TWQC test does not provide her with evidence
of an intervening retaliatory act or a link between the shunning
and her discharge.

Gautney claims that her weapon fired a dummy

round at an irregular time during the ground portion of either the
practice round or the qualifying round.

As described in more

detail above, supra pp. 4–5, the evidence does not show that the
dummy round

caused

Gautney

to

fail.

Gautney’s

low

shooting

accuracy in the qualifying round caused her to fail; she did not
exceed the time limit, so whatever time the dummy round cost her is
irrelevant.

Even if a trainer added the dummy round with the

intention that Gautney fail, she did not fail her third TWQC test
for that reason.

Thus, such alleged sabotage did not cause her

discharge and does not link the trainers shunning her to her
discharge.
Gautney’s fourth TWQC test also does not provide evidence of
sabotage that shows causation or that links her shunning to her
discharge.

The persons who shunned Gautney did not participate in

the disputed portion of the test.

Gautney does not claim that she

experienced any irregularities on the ground portion, where the two
trainers who had shunned her were stationed.

Neither Parker nor

anyone in the chain of command between Gautney and Parker were
present at the shooting range.

Her claims of sabotage derive from

20

the tower portion, where Nixon was stationed.

Nixon is one of the

few TVA employees who Gautney says did not treat her differently
after her EOC complaint.

Nixon testified that he personally pre-

loaded the magazine with ammunition that Gautney later loaded into
the thermal rifle during her qualifying round.

Gautney testified

that she has no reason to doubt that Nixon pre-loaded the magazine
and she does not accuse Nixon of sabotaging the thermal rifle.
Thus, Nixon cannot serve as a causal link between her shunning and
her failing the fourth TWQC test, and Gautney firing the dummy
round cannot serve as evidence of an intervening retaliatory act
with Nixon admittedly having no animus.
(4) Inadequate Training Opportunities
Gautney

contends

that

she

had

inadequate

training

opportunities before her TWQC tests and that this inadequacy is
evidence of intervening retaliatory acts.
exchanges with trainers.

Gautney focuses on two

First, she had one 30-minute training

session with Thompson, who appeared rushed and “aggravated at
having to help [her].” Doc. 28-1, ¶ 6.

Gautney did not ask

Thompson to extend the session because of his demeanor and her
knowledge that he typically left for home at that time in a carpool.

However, she does not claim that he refused to train her or

he refused to schedule additional training time with himself or
another trainer.

Although his demeanor may have discouraged

Gautney from requesting additional training time, his failure to
21

volunteer does not qualify as a retaliatory act.
Second, Gautney attempted to schedule independent training
time on the practice range and had limited success.

She claims

that Nixon “continually told” her that the range was in use by
groups and he “did not point out any open times for the range that
[she] could use.” Doc. 28-1, ¶5.

Nixon’s failure to volunteer to

help Gautney does not qualify as retaliatory without evidence that
trainers commonly did so for other guards. Gautney has provided no
such evidence.

Nixon’s acts could be considered retaliatory if he

deliberately impeded Gautney from scheduling trainings.

However,

as discussed above, Gautney expressly disclaims suspicion of Nixon
as a participant in the purported effort to get her discharged.
She also stated at her fourth TWQC test and in testimony that,
notwithstanding

her

difficulty

scheduling

“ready” on the day of her fourth TWQC test.

trainings,

she

was

If Nixon retaliated

against her by impeding her scheduling trainings, which she does
not allege,

Gautney

has

denied

that

these

acts

affected

her

performance or caused her to fail her fourth TWQC test.
(5) Disparate Treatment in Failing TWQC and Being Discharged
Gautney claims disparate treatment both in failing the TWQC
tests and in being discharged for failing them.

Causation can be

inferred by disparate treatment if a similarly situated employee
was disciplined in a different way for substantially the same
conduct. See Burke-Fowler v. Orange Cnty., Fla., 447 F.3d 1319,
22

1323 (11th Cir. 2006); Johnson v. Palma, 931 F.2d 203, 207 (2d Cir.
1991).

Gautney claims that no one else has failed a TWQC test and

no one else has been discharged except based on background checks.
In fact, seven other guards have failed a TWQC test since 2008.

No

evidence indicates that these guards had also filed a EOC complaint
prior to failing the TWQC test.

No evidence indicates that other

guards passed TWQC tests despite receiving substantially the same
scores as Gautney did when she failed.

TVA has no discretion to

decide what qualifies as a passing score. 10 C.F.R. Pt. 73, App. B
§ VI(F)(3)(c).

Six other guards have been discharged since 2009,

at least two of whom appear to have been discharged for reasons
other than a background check.11
guard

has

been

requirement.

discharged

Gautney is correct that no other

for

failing

to

satisfy

the

TWQC

However, Gautney has provided no evidence that any

guard failed or should have failed all four TWQC tests but was not
discharged.

TVA has no discretion to return guards to duty who

have failed the TWQC. 10 C.F.R. Pt. 73, App. B § VI(A)(6).
In short, Gautney has not provided evidence that TVA’s “desire
to retaliate” against her EOC complaint was the “but-for cause” of
her discharge. See Univ. of Texas Southwestern Medical Ctr. v.

11

TVA’s records indicate that two guards were discharged for “Denial of
Unescorted Access,” Doc. 27-17, which suggests but does not necessarily
involve an issue with a background check. One guard was discharged for
“failure to maintain S-11 medical,” and one guard was discharged based on
“unavailability for work.” Id. For two guards, the record entries do not list
a reason. Id.

23

Nassar, 133 S. Ct. 2517, 2528 (2013).

Although Gautney has

provided evidence of intervening retaliatory acts, namely, being
shunned, she has not shown any link between the shunning and her
failing

her

TWQC

tests.

Thus,

without

having

established

causation, Gautney has not shown a prima facie case of retaliation.
2.

TVA’s Proffered Reason and Pretext
Even

if

Gautney

has

presented

a

prima

facie

case

of

retaliation, TVA would be entitled to summary judgment based on the
lack of evidence of pretext.

Once the plaintiff makes out a prima

facie case of Title VII retaliation, the burden shifts to the
defendant to provide a legitimate, non-discriminatory reason for
the adverse action. McDonnell Douglas Corp v. Green, 411 U.S. 792,
802–03

(1973).

Because

defendant's

burden

“is

one

of

production——not persuasion——the employer ‘need not persuade the
court that it was actually motivated by the proffered reason[].’”
Kidd v. Mando Am. Corp., 731 F.3d 1196, 1205 (11th Cir. 2013)
(quoting Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir.
2000) (en

banc)).

Defendant's

offered

reason “need

only

be

specific enough so that the ‘plaintiff [is] afforded a full and
fair opportunity to demonstrate pretext.’” Id. (quoting Chapman,
229 F.3d at 1034).
TVA

says

that

it

discharged

Gautney

because

TVA

policy

requires that it terminate any security guard who does not pass the
TWQC in four attempts. Doc. 26-6, § 3.5.3.
24

NRC regulations also

require

that

security

personnel

pass

a

NRC-approved

tactical

weapons qualification, such as the TWQC, or that person cannot
return to duty. 10 C.F.R. Pt. 73, App. B § VI(A)(6).

TVA’s

proffered reason for discharging Gautney is plausible on its face
and certainly specific enough to require Gautney to show pretext.
TVA

having

produced

a

non-discriminatory

reason

for

discharging Gautney, the burden shifts to Gautney to present
evidence of pretext. See McDonnell Douglas Corp v. Green, 411 U.S.
792, 803 (1973).

She must provide "enough probative evidence so

that a reasonable jury might conclude" that TVA's supposedly
non-discriminatory

reason

is

a

pretext

and

that

TVA

really

discharged Gautney in retaliation for her EOC complaint. See Damon
v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1361 (11th
Cir. 1999).

Gautney may show pretext directly through evidence

that a retaliatory motive is more likely, or indirectly through
evidence that TVA’s offered reason lacks credibility. See Texas
Dept. of Comm. Affairs v. Burdine, 450 U.S. 248, 256 (1982).

The

court finds that Gautney's effort to create pretext by rhetoric
does not satisfy her burden, and TVA is entitled to summary
judgment.
Gautney claims that the “evidence” shows pretext in two ways.
First, she claims that TVA’s ostensible reason for discharging her
lacks credibility because TVA knew that the trainers shunning her
and

her

limited

training

opportunities

25

would

“impair

[her]

performance” on the TWQC tests.

As to her training opportunities,

Gautney does not claim that she had limited training opportunities
before her first and second TWQC tests, and she has expressly
stated

that

she

felt

ready

to

take

her

fourth

notwithstanding the limited training opportunities.

TWQC

test

As to the

shunning, Gautney has provided no evidence that TVA knew that
several trainers shunning her would impair her performance on the
TWQC tests.

Her opinion that TVA knew about this possible effect,

“without more,” does not suffice as evidence of pretext. See
Holifield v. Reno, 115 F.3d 1555, 1564 (11th Cir. 1997).
Second, Gautney claims that the purported sabotage of her TWQC
tests shows that TVA precipitated her failure of the TWQC tests
and, therefore, knew that she did not actually fail when it used
those test results as its basis to discharge her.

As discussed

above, Gautney has not provided evidence of sabotage that links the
trainers who shunned her to her failed TWQC tests.

Lacking a

causal connection, the evidence does not show that TVA precipitated
Gautney’s failure of the TWQC tests or knew that the grounds for
discharging her were ill-founded.

Gautney’s belief that TVA and,

more particularly, Parker engineered her discharge does not suffice
as proof of pretext. See Scalone v. Home Depot, 280 F. App'x 905,
908 (11th Cir. 2008).

26

CONCLUSION
Although Gautney may have suffered social repercussions from
filing her EOC complaint, she has not provided sufficient evidence
for a prima facie case of retaliation.

Even if she has, she also

has not provided sufficient evidence that TVA’s offered nondiscriminatory

reason

for

discharging

her

is

a

pretext.

Accordingly, the court will grant by separate order TVA’s motion
for summary judgment.

DONE this 31st day of March, 2014.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

27