United States District Court, N.D. Mississippi, Aberdeen Division
DAWN L. BEST PLAINTIFF
WILLIAM D. JOHNSON, PRESIDENT AND CHIEF EXECUTIVE OFFICER OF TENNESSEE VALLEY AUTHORITY DEFENDANT
FINDINGS OF FACT AND CONCLUSIONS OF LAW.
B. BIGGERS, JR. UNITED STATES DISTRICT JUDGE.
trial of this cause was held on September 19th and
20th of 2016. The plaintiff Dawn Best sued Bill
Johnson, President and CEO of Tennessee Valley Authority, for
violating Title VII and the Age Discrimination in Employment
Act (“ADEA”). The jury returned a verdict in
TVA's favor on Plaintiff's Title VII claim.
(See Doc. 80.) For the reasons stated in its Order
on Defendant's Motion to Strike Plaintiff's Jury
Demand (Doc. 69), Plaintiff's ADEA claim was tried before
the Court. At the conclusion of trial, and after considering
the proffered documents and testimony, the Court found on the
record that Plaintiff failed to prove her ADEA claim.
(See Doc. 73.) Having found for Defendant, the Court
now enters its findings of fact and conclusions of law
pursuant to Federal Rule of Civil Procedure 52(a).
Ramirez v. Hofheinz, 619 F.2d 443, 445 (5th Cir.
1980) (“In a trial without a jury, the judge, as the
trier of fact, must state, with some degree of precision, his
findings of fact and conclusions of law.”)
Findings of Fact
is a corporate agency and instrumentality of the United
States of America. 16 U.S.C. §§ 831 to 831ee. Its
transmission systems in North America span over 16, 000 miles
and serve 9 million people in portions of seven states.
http://www.tva.com/power/xmission.htm. TVA sells its
electricity to 154 local power company customers, as well as
to 59 directly served industries and federal facilities.
TVA's extensive transmission system covers roughly one
third of Mississippi. Through 28 municipal and cooperatively
owned local power companies, TVA serves 36 Mississippi
counties and provides power to more than 337, 700 households.
Additionally, it provides electric power to eight directly
served industrial customers. These relationships throughout
the state resulted in TVA power sales in Mississippi totaling
approximately $1.2 billion in fiscal year 2015.
TVA is broken down into seven districts to serve its local
power companies, and Mississippi is one of those districts.
(Wardlaw Direct, Trial Tr. Vol. II, 104:24-105:2.)
Plaintiff Dawn Best has an electrical engineering degree from
Mississippi State University. (Best Direct, Trial Tr. Vol. I,
51:22-24.) TVA hired Plaintiff as a power utilization
engineer shortly after she graduated from college in 1979.
(Best Direct, Trial Tr. Vol. I, 52:6-53:8.) Plaintiff worked
at TVA for almost three years, then left to work at various
jobs in Florida. She returned to TVA in 1989, and resumed her
work as a power utilization engineer. Plaintiff served in
various engineering roles until she became a customer service
manager in 1997. (Best Direct, Trial Tr. Vol. I, 54:7-22;
56:12-14; 57:18-58:13; 60:7-16; 62:2-23; 64:20-25; Pl.'s
Ex. 2.) In that job, she worked with TVA's municipal and
cooperative power distributors. (Best Direct, Trial Tr. Vol.
I, 66:14-67:6.) Although her job title and level changed,
Plaintiff remained in this customer service role until 2011.
(Best Direct, Trial Tr. Vol. I, 67:10-68:12; Pl.'s Ex.
2.) In 2011, Plaintiff took a job as an industrial accounts
manager in Mississippi. (Best Direct, Trial Tr. Vol. I,
68:13-69:2; Pl.'s Ex. 2.)
gender and age employment discrimination case arises from
Plaintiff's non-selection as TVA's Mississippi
Customer Delivery General Manager (hereinafter,
“General Manager”), which is the highest-ranking
TVA job in the state of Mississippi. (Wardlaw Direct, Trial
Tr. Vol. II, 98:14-20.)
Plaintiff applied for the General Manager job on January 15,
2013. (Best Direct, Trial Tr. Vol. I, 72:3-73:4; Pl.'s
Wardlaw was the decision-maker for the General Manager
selection. (Wardlaw Direct Trial Tr. Vol. II, 98:8-13.) Mr.
Wardlaw has spent his entire career at TVA, and currently
serves as its Executive Vice President of External Relations.
(Wardlaw Direct, Trial Tr. Vol. II, 103:5-104:4.)
the General Manager position came open, Mr. Wardlaw testified
that he had the discretion to “just pick someone that
[he] thought was ready for the position based on [his]
judgment.” However, he chose to publicly post the
position because TVA “had several good candidates
internally” and because there were also “several
people outside of TVA that [he] thought could potentially do
the job, ” so he “wanted to open up that
opportunity and see who the best candidate was.”
(Wardlaw Direct, Trial Tr. Vol. II, 106:5-19; Brown Direct,
Trial Tr. Vol. II, 66:8-20; 69:13-17; Def's Ex. 27.)
Wardlaw worked with Human Resources to post the position, but
he did not directly involve himself in the posting process.
(Wardlaw Direct, Trial Tr. Vol. II, 107:5-14.)
part of the initial steps of its selection process, TVA also
conducted a “records review” of the
applicants' competencies. This includes things like job
history, performance reviews, and experience. This was the
“first hurdle” in the selection process. The
records review was not determinative; it was only a one of
many “hurdles” in the selection process. The
purpose of having these multiple “hurdles” was to
create “several data points to insure you're making
a well-informed decision.” (Brown Direct, Trial Tr.
Vol. I, 134:1-21; 134:22-135:8; Brown Direct, Trial Tr. Vol.
top candidates following the records review proceeded to the
next hurdle, which was an interview. Mr. Wardlaw did not
participate in these interviews, but instead formed a team to
conduct them. Mr. Wardlaw's goal at this stage was for
the interview team to screen the candidate pool and bring the
number of applicants down to a more manageable number, from
which he could then make the final selection decision. He
also wanted to bring together “a diverse group of
folks” to weigh in on the decision. (Wardlaw Direct,
Trial Tr. Vol. II, 108:21-109:18; Campbell Direct, Trial Tr.
Vol. II, 49:22-50:1.)
Plaintiff testified that five people interviewed her during
the first round: Joie Brown (Human Resources); Rick Misso
(Mississippi Customer Service Manager); Jimmy Allen (Senior
Advisor to Van Wardlaw); Laura Campbell (Memphis District
General Manager); and Jim Keiffer (Middle Tennessee General
Manager). (Best Direct, Trial Tr. Vol. I, 73:15-74:2.)
Plaintiff brought to the interview a resume, a “90-day
plan, ” and letters of recommendation from several
general managers at various Mississippi local power
companies. (Best Direct, Trial Tr. Vol. I, 74:5-12; see
also Pl.'s Exs. 35, 26-34.)
Joie Brown confirmed that she participated in the first round
of interviews. (Brown Direct, Trial Tr. Vol. I, 124:21-22.)
Ms. Brown testified that the interview team asked the
applicants the same questions, took copious notes, and, at
the end of the interview, came to a consensus to rate each
candidate's interview performance. (Brown Direct, Tr.
Vol. I, 138:17-24.) Ms. Brown did not remember the exact
details of the interview, but she did remember thinking that
Plaintiff did not perform as well as the other candidates.
(Brown Direct, Trial Tr. Vol. I, 139:5-140:25.)
Laura Campbell, who is now TVA's Vice President of
Customer Delivery, also confirmed that she participated in
the first round of interviews. (Campbell Direct Trial Tr.
Vol. II, 47:1-6.) At the time she sat on the interview panel,
Ms. Campbell did not know the ages of any of the applicants;
in fact, at the time, she thought that John Malone (the
eventual selectee) was older than Plaintiff. (Campbell
Direct, Trial Tr. Vol. II, 50:2-17.) Ms. Campbell did not
remember the specific details of the interviews, but she did
remember that John Malone “stood out.” She
remembered that he “really showed a passion for wanting
to lead Mississippi and really kind of dazzled, ” and
that “he brought on a lot of charisma towards the end
and linked a lot of the broader initiatives that TVA was
looking to achieve to what he could bring to
Mississippi.” (Campbell Direct, Trial Tr. Vol. II,
the end of the first interview, the team recommended that
Tommy Jackson (age unknown), Reggie Bowlin (age unknown),
John Malone (49 years old), and Bill Duke (age 55) proceed to
a final round of interviews. Plaintiff was not among the
candidates that the team recommended to move forward. The
team told Mr. Wardlaw that they felt the Plaintiff had not
performed well in the interview. (Wardlaw Direct, Trial Tr.
Vol. II, 110:8-111:8; Def.'s Ex. 22.)
Notwithstanding the interview team's recommendations, Mr.
Wardlaw chose to invite Plaintiff to the final round of
interviews. He did this because he thought Plaintiff was a
long-term employee who had done “an admirable job as
[a] customer service manager.” Thus, Mr. Wardlaw felt
that “she deserved the opportunity to be looked at one
last time.” (Wardlaw Direct, Trial Tr. Vol. II,
final candidates who Mr. Wardlaw interviewed were Plaintiff,
John Malone, and Bill Duke. The final interviews were
conducted by Van Wardlaw, Jimmy Allen, and Laura Campbell.
(Wardlaw Direct, Trial Tr. Vol. II, 111:19-25; Best Direct,
Trial Tr. Vol. I, 79:6-13.)
Wardlaw was looking for four attributes during the interview,
and he and his team asked interview questions that aligned
with those attributes. (Wardlaw Direct, Trial Tr. Vol. II,
112:17-113:9; 114:6-9; Def.'s Ex. 40.)
first factor was “leadership, management, previous
managing experience.” (Wardlaw Direct, Trial Tr. Vol.
II, 113:19-21.) This was important because the General
Manager is responsible for creating a “good, positive
work environment where people can come to work every day and
feel appreciated.” (Wardlaw Direct, Trial Tr. Vol. II,
114:16-115:6.) Neither Plaintiff nor Mr. Malone had extensive
experience in that area, so Mr. Wardlaw “graded them
about the same level.” (Wardlaw Direct, Trial Tr. Vol.
second factor was how well the candidate worked with
customers. (Wardlaw Direct, Trial Tr. Vol. II, 113:16-21.)
Specifically, Mr. Wardlaw was looking at which candidate
would be able to build on TVA's positive relationships
with its customers in Mississippi. (Wardlaw Direct, Trial Tr.
Vol. II, 115:21-24.) Both Mr. Malone and Plaintiff had
“done a really nice job” working with their
respective customers. On this factor, Plaintiff “may
have had a little bit of an edge, but they were basically
close.” (Wardlaw Direct, Trial Tr. Vol. II,
third factor was “networking skills, ” which
refers to whether someone has the “ability to get
things from the bigger TVA into this particular part of the
country. . . .” (Wardlaw Direct, Trial Tr. Vol. II,
113:22-25.) To be successful as a General Manager, you have
to “be very, very good at understanding how TVA, the
bigger corporation, operates and runs.” (Wardlaw
Direct, Trial Tr. Vol. II, 117:7-11.) Mr. Wardlaw was
personally familiar with this skill, as he had spent a lot of
time in Mississippi in the earlier part of his career, and it
was not until he worked at other parts of the agency that he
“fully understood the criticality of competing for
resources and skills and that sort of thing.” (Wardlaw
Direct, Trial Tr. Vol. II, 117:12-19.) Mr. Malone was
stronger than Plaintiff on this factor, given that he had
worked in TVA corporate in Chattanooga, and had also worked
at other parts of TVA. (Wardlaw Direct, Trial Tr. Vol. II,
fourth factor was “executive skills, ” or the
“ability to lead” and “to represent TVA as
the face of TVA in the state of Mississippi.” (Wardlaw
Direct, Trial Tr. Vol. II, 114:2-5.) This was important to
the General Manager position because that person “has
to be very poised, has to be very confident, has to be a good
communicator, a very good public speaker.” The General
Manager may often have to speak in public, must deal with
high-ranking officials, and must “stay very calm, very
cool, very collected” under stress. (Wardlaw Direct,
Trial Tr. Vol. II, 118:24-119:18.) Mr. Wardlaw also described
this factor as “executive presence.” Mr. Wardlaw
testified that when he considers that term, he is
“[t]hinking about poise, confidence, public speaking,
problem solving, conflict resolution, dealing with stressful
situations and environments, and doing that in a way that
gives people confidence that . . . everything's going to
be okay; that you understand the situation; that you're
going to work hard.” (Wardlaw Direct, Trial Tr. Vol.
this fourth factor, Mr. Wardlaw testified that Mr. Malone was
“solidly ahead.” (Wardlaw Direct, Trial Tr. Vol.
II, 121:14-17.) Mr. Wardlaw observed that “[d]uring the
interview process, [Mr. Malone] handled himself extremely
well, answered these questions very thoroughly, stayed on
point, was very consistent with his message, did not flinch
when we were pressuring him a little bit to get more detailed
about a particular question.” Mr. Wardlaw also noted
that he had known both Plaintiff and John Malone for 25
years, during which he had observed them in forums, meetings,
and public speaking engagements. (Wardlaw Direct, Trial Tr.
Vol. II, 121:19-122:5.) As compared to Mr. Malone, the
testimony was that the Plaintiff “had a tendency to
ramble, to come off point, to come off topic, to say a lot of
words that really weren't relevant to the question that
was being asked” and that these tendencies “can
get you in a lot of trouble in public speaking ...