Bledsoe v. Tenn. Valley Auth. Bd. of Dirs.

• Decision Date: 27 July 2022
• Docket Number: 21-5808
• Citation: 42 F.4th 568
• Parties: Robert BLEDSOE, Plaintiff-Appellant, v. TENNESSEE VALLEY AUTHORITY BOARD OF DIRECTORS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

42 F.4th 568

Robert BLEDSOE, Plaintiff-Appellant,

v.TENNESSEE VALLEY AUTHORITY BOARD OF DIRECTORS, Defendant-Appellee.

No. 21-5808

United States Court of Appeals, Sixth Circuit.

Argued: March 17, 2022

Decided and Filed: July 27, 2022

ARGUED: Douglas S. Hamill, Chattanooga, Tennessee, for Appellant. Kathleen Keough Griebel, TENNESSEE VALLEY AUTHORITY, Knoxville, Tennessee, for Appellee. ON BRIEF: Douglas S. Hamill, Chattanooga, Tennessee, for Appellant. Kathleen Keough Griebel, David D. Ayliffe, Lamont A. Belk, TENNESSEE VALLEY AUTHORITY, Knoxville, Tennessee, for Appellee.

Before: MOORE, COLE, and NALBANDIAN, Circuit Judges.

MOORE, J., delivered the opinion of the court in which COLE, J., joined. NALBANDIAN, J. (pp. 589-93), delivered a separate dissenting opinion.

KAREN NELSON MOORE, Circuit Judge.

Robert Bledsoe, a nuclear-plant operator working for the Tennessee Valley Authority (TVA), alleges that the Authority discriminated against him based on his age and disability in violation of the Age Discrimination in Employment Act (ADEA) and the Rehabilitation Act. Citing ethical concerns that arose when Bledsoe's son was accepted to the training program that Bledsoe taught, a committee overseeing the training center voted to demote Bledsoe from his instructor position. One of the members of the committee, Bledsoe's supervisor, had repeatedly made disparaging remarks about Bledsoe's age and disability in the months prior to the committee's decision. A reasonable jury could conclude that Bledsoe's supervisor used the ethical concern as a pretext to convince the other members of the committee to demote him. We REVERSE the district court's judgment and REMAND for further proceedings.

I. BACKGROUND

Bledsoe has worked at the TVA, a federally owned corporation that provides utilities to the Tennessee Valley region, since 1985. R. 30-6 (Bledsoe Dep. at 48–49) (Page ID #551); 16 U.S.C. § 831. TVA operates two nuclear plants in Tennessee: the Sequoyah Nuclear Plant and the Watts Bar Nuclear Plant. Nuclear , Tennessee Valley Authority, https://www.tva.com/energy/our-power-system/nuclear (last visited February 4, 2022). For most of Bledsoe's career at the TVA, he has worked as an Assistant Unit Operator (AUO) at the Sequoyah Nuclear Plant. R. 30-6 (Bledsoe Dep. at 50–51) (Page ID #552).

The TVA runs two types of training programs at their nuclear plants: one for AUOs, who are not licensed, and one for licensed training operators. R. 30-1 (Dahlman Dep. at 40) (Page ID #249); R. 30-6 (Bledsoe Dep. at 60) (Page ID #554). Only licensed training operators may teach the courses for licensed operators. R. 30-6 (Bledsoe Dep. at 60) (Page ID #554). The AUO training program has two types of courses. An AUO must initially complete the Nuclear Student Generation Plant Operating (NSGPO) training course. R. 30-5 (Williams Dep. at 15–16) (Page ID #476–77). Throughout the year, an AUO must also complete Non-Licensed Operator Requalification (NLOR) courses to keep requirements up to date. Id. at 17–18 (Page ID #478–79). Each nuclear plant at the TVA has a local joint training subcommittee (the Committee), which oversees the NLOR and NSGPO programs. Id. at 19–20 (Page ID #480–81).

In May 2015, the Committee appointed Bledsoe to be an NSGPO instructor. R. 30-6 (Bledsoe Dep. at 51) (Page ID #552). In that role, Bledsoe developed lessons, exams, and course materials. R. 30-1 (Dahlman Dep. at 58) (Page ID #254). Bledsoe collaborated with both licensed and non-licensed instructors in all the training programs. R. 30-6 (Bledsoe Dep. at 59) (Page ID #554); R. 30-4 (Bailey Dep. at 80–81) (Page ID #412–13). Jeremy Bailey oversaw Bledsoe's day-to-day activities in the non-licensed training program. R. 30-4 (Bailey Dep. at 34–35) (Page ID #366–67). Beginning in January 2017, Christopher Dahlman, Bailey's supervisor, managed all training programs at the Sequoyah Training Center as the Operations Training Manager. R. 30-1 (Dahlman Dep. at 39–40, 58) (Page ID #249, 254).

Bledsoe took medical leave in October 2016 to manage his liver cirrhosis

. R. 24-1 (Bledsoe Decl. ¶ 3, 6) (Page ID #165–66). In February 2017, Bledsoe returned to work after receiving a liver transplant. R. 30-6 (Bledsoe Dep. at 63–64) (Page ID #555). Bledsoe's condition required him occasionally to use a cane and to take medications, which he kept on his desk. Id. at 18, 63, 67 (Page ID #544, 555–556).

Shortly after Bledsoe returned to work, Dahlman began to comment on Bledsoe's health and age. Id. at 160–61 (Page ID #579). Beginning in April 2017 and continuing into January 2018, Dahlman berated Bledsoe about his disability and pressured him to retire. Id. at 160–64 (Page ID #579–80). The following incidents are only some examples of Dahlman's behavior:

• After asking Bledsoe to show him his progress in updating lesson plans, Dahlman told Bledsoe, "if you're not at 100 percent, I can't use you." Id. at 15 (Page ID #543). Dahlman then asked Bledsoe about the medications that Bledsoe kept on his desk. When Bledsoe explained that the medications treated his liver condition, Dahlman repeated, "[y]ou've got to be 100 percent for this job." Id. at 15–17 (Page ID #543). This was not the only time that Dahlman asked Bledsoe about his medications and their effect on his job. Id. at 19 (Page ID #544). One day, after asking Bledsoe to remove his medications from his desk, Dahlman asked Bledsoe, "[j]ust how disabled are you?" Id. at 22 (Page ID #545).

• While discussing lesson plans in November 2017, Dahlman again asked Bledsoe, "[a]re you 100 percent yet?" When Bledsoe responded that he was "getting there," Dahlman replied, "[t]hat's not good enough ... I'm tired of disabilities and I'm tired of medical problems." Id. at 31 (Page ID #547).

• Dahlman asked Bledsoe whether he had other disabilities, demanded that Bledsoe tell him about them "in detail," and asked Bledsoe whether he was "eligible for disability." Id. at 15, 17, 19 (Page ID #543–44). After Bledsoe told Dahlman about some of his medical problems, Dahlman responded that he was not "running a rehabilitation clinic." Id. at 16 (Page ID #543).

• Dahlman asked Bledsoe his age and told him numerous times that he should consider retiring. Id. at 16–17 (Page ID #543). These suggestions eventually turned into a command. Dahlman told Bledsoe, "you need to go ahead and retire .... I'm concerned about this disability you have, your condition with your liver." Id. at 21 (Page ID #544).

• In October 2017, after asking about Bledsoe's lesson planning progress, Dahlman commented, "I think your disability is slowing all this down. ... You're really too old to be doing this." Id. at 24–25 (Page ID #545).

• In January 2018, Dahlman questioned Bledsoe's ability to teach. Again, after discussing Bledsoe's lesson-plan progress, Dahlman asked, "Are you even going to be able to teach? ... I wouldn't think with your condition and—your medical condition and your age that you would want to teach." Id. at 40–41 (Page ID #549).

• Dahlman also warned Bledsoe multiple times not to "piss [him] off," telling Bledsoe that he was "vindictive" and "not patient." Id. at 25, 39 (Page ID #545, 549). On one occasion, Dahlman told Bledsoe, "if you piss me off, you're not going to be working over here. I'm just telling you." Id. at 39 (Page ID #549).

TVA employees observed Dahlman make similar comments related to age or disability about Bledsoe and others. R. 33-4 (Painter Decl. ¶ 6–7) (Page ID #832); R. 33-2 (Allen Decl. ¶ 6–7) (Page ID #826).

Bledsoe at first hesitated to notify human resources about the comments because he was afraid of Dahlman, who had previously physically and emotionally intimidated him. R. 30-6 (Bledsoe Dep. at 159–60) (Page ID #579). Around November 27, 2017, however, Bledsoe reported these incidents in a meeting with Bailey; Megan Markum, a human resources generalist; and David Williams, the union vice president. Id. at 158–59, 163 (Page ID #579–80); R. 30-11 (Markum Dep. at 7) (Page ID #616). Markum responded that Bledsoe should not worry because she and Dahlman were friends and that she "d[idn't] think he would do anything." R. 30-6 (Bledsoe Dep. at 37) (Page ID #548). A few days later, Bailey told Bledsoe that he had relayed Bledsoe's complaint to Dahlman and that Dahlman was angry about it. Id. at 38–39 (Page ID #549). In December 2017, Bailey told Bledsoe, "I'm afraid [Dahlman] is going to try to get you out of here because he's really pissed off about you going and talking to HR." Id. at 169 (Page ID #581).

Meanwhile, in November 2017, Bledsoe's son Hudson had applied for a position in the NGSPO classes offered both at Sequoyah and Watts Bar. R. 30-1 (Dahlman Dep. at 80–81) (Page ID #259–60). On an employment form that asked him to rank his location preferences, Hudson indicated that he preferred a position at the Sequoyah Nuclear Plant, but that he was willing to accept employment at either location. R. 30-13 (Hudson Bledsoe Employment Affirmation) (Page ID #670). Hudson "informed the union rep that [he] would appreciate it if [he] could work at Sequoyah because of the drive but that [he] was ready to go to either plant." R. 30-18 (Hudson Bledsoe Decl.) (Page ID #724). TVA offered Hudson a position in the NSGPO training program at Sequoyah, and Hudson was expected to begin the program in March 2018. See R. 30-11 (Markum Dep. at 64, 114) (Page ID #630, 643). Bledsoe was scheduled to teach that same class. R. 30-16 (Michael Dep. at 41–42) (Page ID #689).

Recognizing the potential conflict of interest, Bledsoe asked Dahlman and Bailey if his son's joining the program would present a problem. R. 30-6 (Bledsoe Dep. at 132–33) (Page ID #572). Dahlman told Bledsoe not to "worry about it," but that Bledsoe could teach the NLOR program while his son was in the NSGPO program if there were an issue. Id .

Separately, a couple of months before this conversation, Kevin Michael, an operations management representative, had seen a list of NSGPO interview candidates and...