Gautney v. Tennessee Valley Authority Board of Directors

9 F. Supp. 3d 1245, 2014 U.S. Dist. LEXIS 44503, 122 Fair Empl. Prac. Cas. (BNA) 907, 2014 WL 1330939
CourtDistrict Court, N.D. Alabama
DecidedMarch 31, 2014
DocketCase No. 2:13-CV-324-WMA
StatusPublished
Cited by2 cases

This text of 9 F. Supp. 3d 1245 (Gautney v. Tennessee Valley Authority Board of Directors) is published on Counsel Stack Legal Research, covering District Court, N.D. Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gautney v. Tennessee Valley Authority Board of Directors, 9 F. Supp. 3d 1245, 2014 U.S. Dist. LEXIS 44503, 122 Fair Empl. Prac. Cas. (BNA) 907, 2014 WL 1330939 (N.D. Ala. 2014).

Opinion

MEMORANDUM OPINION

WILLIAM M. ACKER, JR., District Judge.

This case comes before the court on the motion of defendant Tennessee Valléy 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.

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 Gaut-ney 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 (“Lo-vett”) 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 treat her differently after her EOC com[1248]*1248plaint. 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. The dummy rounds function as a safety precaution in case 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 one-point 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.

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 80-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 Gaut-ney 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 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 evidence of Gautney’s test scores indicates otherwise. 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 [1249]*1249passing 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, Lo-vett, 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, her un-contradicted 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.

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9 F. Supp. 3d 1245, 2014 U.S. Dist. LEXIS 44503, 122 Fair Empl. Prac. Cas. (BNA) 907, 2014 WL 1330939, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gautney-v-tennessee-valley-authority-board-of-directors-alnd-2014.