Clarence Seay, Jr. v. Tennessee Valley Authority; Craven Crowell

*The Honorable William O. Bertelsman, Senior United States District
Judge for the Eastern District of Kentucky, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0275P (6th Cir.)
File Name: 03a0275p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
CLARENCE SEAY, JR.,
Plaintiff-Appellant,
v.
TENNESSEE VALLEY
AUTHORITY; CRAVEN
CROWELL,
Defendants-Appellees.
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No. 01-5953
Appeal from the United States District Court
for the Eastern District of Tennessee at Chattanooga.
No. 00-00168—R. Allan Edgar, Chief District Judge.
Argued: December 6, 2002
Decided and Filed: August 6, 2003
Before: COLE and CLAY, Circuit Judges;
BERTELSMAN, Senior District Judge.*
2 Seay v. Tennessee Valley Authority et al. No. 01-5953
_________________
COUNSEL
ARGUED: John R. Benn, Sheffield, Alabama, for
Appellant. Barbara S. Maxwell, TENNESSEE VALLEY
AUTHORITY, Knoxville, Tennessee, for Appellees.
ON BRIEF: John R. Benn, Sheffield, Alabama, for
Appellant. Barbara S. Maxwell, Thomas F. Fine, John E.
Slater, Dillis D. Freeman, TENNESSEE VALLEY
AUTHORITY, Knoxville, Tennessee, for Appellees.
_________________
OPINION
_________________
CLAY, Circuit Judge. Plaintiff Clarence Seay, Jr. appeals
from the district court’s grant of summary judgment, on all
counts of Plaintiff’s amended complaint, in favor of
Defendants Tennessee Valley Authority and Craven Crowell
(collectively “TVA”). The lawsuit concerned certain adverse
actions TVA took against Plaintiff which Plaintiff alleged
constituted violations of Title VII of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e et seq., and various other statutes
and policies. Plaintiff contends that genuine issues of
material fact remain for this case to proceed to trial, and that
the district court erred in denying Plaintiff’s request to strike
evidentiary submissions from TVA’s reply briefs. As
discussed below, we AFFIRM in part and REVERSE in part
the district court’s judgment.
I
A. Procedural Background
On November 17, 1999, Plaintiff filed a 131-count
complaint with the United States District Court for the
Northern District of Alabama, which alleged, in pertinent
part, the following: (1) wrongful non-selection relating to

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No. 01-5953 Seay v. Tennessee Valley Authority et al. 3
forty-three posted vacant positions due to race discrimination
and retaliation, in violation of Title VII; (2) violation of
TVA’s hiring and retention policy for disabled veterans;
(3) violation of Supplementary Agreement 10 of TVA’s
collective bargaining agreement; (4) violation of Plaintiff’s
procedural and substantive reduction-in-force (“RIF”) rights;
(5) wrongful adverse action (suspension); and (6) racially
discriminatory suspension. The district court for the Northern
District of Alabama dismissed with prejudice forty-eight
counts of Plaintiff’s complaint and transferred the case to the
Eastern District of Tennessee. Subsequent to the transfer,
Plaintiff filed an amended complaint.
TVA filed four motions for partial summary judgment,
which collectively sought to dismiss with prejudice all
remaining counts in Plaintiff’s amended complaint. The first
motion sought to dismiss fifty-nine counts, and Plaintiff filed
responsive papers in opposition on March 15, 2001. TVA
then filed a reply brief on March 26, 2001. TVA attached to
the reply brief some additional evidentiary submissions.
Three days later, on March 29, 2001, the district court issued
an order granting summary judgment to TVA on all fifty-nine
counts. The following day Plaintiff filed a motion to strike
the evidentiary submissions attached to TVA’s reply brief,
which the district court denied.
On March 26, TVA filed its second motion for partial
summary judgment; Plaintiff filed papers in opposition on
April 20, 2001, and TVA filed a reply brief on April 25, 2001.
Plaintiff did not challenge any submissions in connection
with this sequence.
On March 30, 2001 TVA filed its third motion for partial
summary judgment. Plaintiff filed his response on April 26,
2001, and on May 2, 2001 TVA filed a reply brief, which
included new declarations. Attached to the declarations were
exhibits containing evidentiary material that had not
previously been submitted by TVA, although the evidentiary
material had been submitted by Plaintiff. Plaintiff moved to
4 Seay v. Tennessee Valley Authority et al. No. 01-5953
strike the evidentiary submissions, and the district court
denied this request.
On April 2, 2001, TVA filed its fourth motion for partial
summary judgment. Plaintiff filed papers in opposition on
April 26, 2001. On May 4, 2001, TVA submitted an
amended fourth motion, which argued, in part, that the district
court lacked subject matter jurisdiction over counts 126, 127,
130, and 131 of Plaintiff’s amended complaint. Plaintiff filed
a motion to strike TVA’s amended motion, arguing that it was
not timely. The district court denied this motion.
On May 29, 2001, the district court granted summary
judgment in favor of TVA on all of the remaining counts in
Plaintiff’s amended complaint. Plaintiff then filed a motion
for reconsideration or clarification, which the district court
also denied. This timely appeal followed.
B. Substantive History
Plaintiff, an African American male, was employed with
TVA from April of 1977 to September 26, 1997. At the time
of his termination, he was a Safety Specialist in TVA’s Labor
and Safety organization. He had a grade level of SD-4 and
was a 60% disabled veteran. The gravamen of Plaintiff’s
amended complaint concerns three events during his
employment with TVA: his sixty-day suspension, his
termination pursuant to a RIF, and his non-selection for forty-
three vacant positions to which he applied after he was given
notice of his RIF.
1. Sixty-Day Suspension
On February 10 and 11, 1997, Plaintiff was assigned to
perform a safety inspection at TVA’s Raccoon Mountain
Pumped Storage Plant (“Raccoon Mountain”). Although the
work would not begin until Monday, February 10, 1997,
because of the traveling distance and pursuant to custom at
TVA, Plaintiff checked out a TVA vehicle on Friday,

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No. 01-5953 Seay v. Tennessee Valley Authority et al. 5
February 7, 1997, and drove it to his residence in
Chattanooga, Tennessee. On Monday, February 10, Plaintiff
drove the vehicle to Raccoon Mountain, and after finishing
work he drove the vehicle to Miles Law School in
Birmingham, Alabama, some 139 miles away, where he was
attending night classes. He repeated this process on the
following day, February 11, 1997. Plaintiff admitted to
having used the vehicle for unofficial and personal purposes
of attending the law school classes on those two nights. He
also acknowledged that he had not received permission to use
the vehicle for this purpose. The two trips resulted in about
500 additional miles of usage for the TVA vehicle. Plaintiff’s
conduct was discovered, and the matter was referred to the
Office of the Inspector General (OIG) for an investigation.
After OIG completed its investigation into the matter,
Plaintiff’s supervisor James Johnson issued a Notice of
Proposal recommending that Plaintiff receive a sixty-day
suspension because he misused the TVA vehicle “on two
separate occasions.” (J.A. at 493.) Subsequently, Johnson’s
supervisor, Eugene Walters, issued a Notice of Decision,
informing Plaintiff of his sixty-day suspension for twice
misusing a TVA vehicle. After receiving the notice, Plaintiff
contacted one of TVA’s Equal Opportunity (EO) counselors.
He then filed a formal administrative charge, or Equal
Employment Opportunity (EEO) complaint, with TVA’s
Equal Opportunity Compliance (EOC) staff, alleging that his
suspension was due to racial discrimination and retaliation for
prior EOC activity.
2. Plaintiff’s RIF and Non-selections
In February of 1997, TVA obtained an outside consultant,
Scott Madden, to conduct a workforce competitiveness study
of several of TVA’s organizations. Pursuant to Madden’s
recommendations, TVA decided to undertake a reorganization
of four departments, resulting in numerous RIFs throughout
those departments. As part of the reorganization, all of the
Safety Specialist positions were eliminated. Plaintiff was
6 Seay v. Tennessee Valley Authority et al. No. 01-5953
1For a definition of “mixed case” comp laint, see Part IV.A , infra.
notified on July 25, 1997 that he would be terminated
pursuant to the RIF effective September 26, 1997.
After learning of his impending RIF termination, Plaintiff
contacted an EO counselor and alleged that he was being
terminated due to race discrimination and retaliation for prior
EOC activity. Plaintiff also applied for approximately forty-
three vacant job postings at TVA, but he was not selected for
any of the positions. Plaintiff filed an EEO complaint with
TVA’s EOC staff for each of these non-selections.
On September 26, 1997, Plaintiff was terminated from
TVA pursuant to the RIF. Although he was the highest-listed
employee for retention purposes (i.e., he would be the last
terminated within his group), he was still terminated because
the entire department was eliminated in the reorganization.
Plaintiff filed another EEO complaint on November 22,
1997 with TVA’s EOC staff. This complaint alleged that he
was being terminated due to race discrimination. It also
challenged whether the termination took into consideration
his rights as a disabled veteran and whether the termination
was conducted in accordance with TVA’s collective
bargaining agreement. Because the complaint involved
discrimination claims as well as nondiscrimination claims, the
EOC staff accepted Plaintiff’s complaint as a “mixed case”
complaint, pursuant to 5 U.S.C. § 7702 and 29 C.F.R.
§ 1614.302.1 Before the EOC director issued a final decision,
but more than 120 days after the EOC staff received the
complaint, Plaintiff filed the instant civil action.
II
We review a district court’s grant of summary judgment de
novo. Holloway v. Brush, 220 F.3d 767, 772 (6th Cir. 2000)
(en banc). Summary judgment is only appropriate where “the

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No. 01-5953 Seay v. Tennessee Valley Authority et al. 7
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact.” Fed. R.
Civ. P. 56. The mere existence of some alleged factual
dispute in the case will not defeat an otherwise properly
supported summary judgment motion. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986).
III
On appeal, Plaintiff challenges the district court’s dismissal
of his claims involving non-selections for the positions of
(1) Contract Manager, (2) Project Manager, Safety, and (3)
Methods Team Specialist (Plant Operations). The district
court dismissed these claims, finding that Plaintiff failed to
establish a prima facie case of racial discrimination regarding
any of the non-selections.
To avoid a grant of summary judgment on a Title VII
claim, a plaintiff must either provide direct evidence of
discrimination or establish a prima facie case, which creates
an inference of discrimination based on circumstantial
evidence. Talley v. Bravo Pitino Rest., Ltd., 61 F.3d 1241,
1248 (6th Cir. 1995) (citations omitted). A prima facie case
requires a plaintiff to show (1) that he is a member of a
protected class; (2) that he applied for, and did not receive, a
job; (3) that he was qualified for the job; and (4) that a
similarly-situated person who was not in the plaintiff’s
protected class received the job. Thurman v. Yellow Freight
Sys., Inc., 90 F.3d 1160, 1166 (6th Cir. 1996); see also Tex.
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54 &
n.6 (1981) (quoting McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973)).
Once the plaintiff establishes a prima facie case, the burden
shifts to the defendant to offer a legitimate, nondiscriminatory
reason for the adverse employment action at issue. Burdine,
450 U.S. at 253 (citing McDonnell Douglas, 411 U.S. at 802).
If the defendant satisfies that burden, then the burden of
8 Seay v. Tennessee Valley Authority et al. No. 01-5953
production shifts back to the plaintiff to show that the
defendant’s proffered reason is a pretext for discrimination.
Id. (citing McDonnell Douglas, 411 U.S. at 804). “A plaintiff
can demonstrate pretext by showing that the proffered reason
(1) has no basis in fact, (2) did not actually motivate the
defendant’s challenged conduct, or (3) was insufficient to
warrant the challenged conduct.” Hopson v. DaimlerChrysler
Corp., 306 F.3d 427, 434 (6th Cir. 2002) (quoting Dews v.
A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000) (internal
citation and quotation marks omitted)).
A. Count 15: The Contract Manager Position
On appeal, there is no dispute that Plaintiff was a member
of a protected class (African American), that he applied for
the Contract Manager position, that he did not get an
interview or an offer, and that the job went to a white person
instead. However, the district court found that Plaintiff had
failed to establish that he was qualified for the position. The
job posting set forth the following minimum requirements for
the Contract Manager position:
Ability to provide leadership, to coach people toward
accomplishment of group objectives. To manage change
occurring in a rapidly changing environment. Work
independently with minimal or no supervision.
Extensive background in areas of supply chain mgt &
skills in negotiation. Oral & written communication.
Process improvement & financial analysis. B.S. degree
in business administration, or related field, or equivalent
experience in an industrial environment, including
managerial experience. Knowledge of supply chain
principles & practices, TVA business policies, laws,
regulations, executive orders, & fed guidelines governing
TVA’s contracting.
(J.A. at 1388.) The main point of contention between the
parties is the requirement of “[e]xtensive background in areas
of supply chain [management and] skills in negotiation, oral

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No. 01-5953 Seay v. Tennessee Valley Authority et al. 9
[and] written communication.” TVA also notes that John
Opp, the selecting manager for this position, submitted a
sworn statement that his “interviews were directed to those
people with the most procurement-related experience that had
been a purchasing agent or contract manager with relevant
prior experience.” (J.A. at 250). TVA argues that Plaintiff’s
application and resume did not demonstrate any experience in
procurement or supply chain management. TVA also argues
that Plaintiff’s own deposition testimony, in which he stated
that he had never been a purchasing agent or contract manager
while employed at TVA and had never worked under Opp’s
supervision, refutes his present contention that he met the
criteria. Plaintiff contests this by pointing to his application,
which included a statement from his immediate supervisor
about his then-current job responsibilities:
Coordinated the daily order and distribution processing,
tracking, and security of the audiovisual library.
Planned, coordinated, and implemented procurement of
new audiovisuals with the year budget. Upgraded the
technical quality of audiovisuals to state-of-the-art
through procurement practices or replacement
agreements with production companies.
(J.A. at 1395 (emphasis added).) Although this statement
supports some background in procurement activities, Plaintiff
has not come forward with any evidence that he has had any
supply chain management experience. The closest possibility
on his resume was his job as a Material Control Storekeeper
in the Army from 1969 to 1970. Plaintiff described his work
in this position as “Responsible for inventory for all stores on
plant site.” (J.A. at 1393.) This description is vague and
makes no mention of negotiation. Although Plaintiff’s
deposition testimony shed more light on what “[r]esponsible
for inventory” meant, Opp had only the descriptions on
Plaintiff’s application and resume at his disposal, and it was
not Opp’s responsibility to discern all of Plaintiff’s work
experience from the brief descriptions on his application and
resume.
10 Seay v. Tennessee Valley Authority et al. No. 01-5953
Moreover, the record demonstrates that the successful
candidate, Roy Jones, possessed the requisite work experience
through his position as a purchasing agent at TVA and met
the other minimum criteria. Therefore, we are not persuaded
that Plaintiff established his prima facie case for his non-
selection claim regarding the Contract Manager position.
B. Count 75: The Project Manager, Safety Position
Next, Plaintiff challenges the dismissal of his non-selection
claim for a Project Manager, Safety Position in the Training
and Safety department. The district court, in granting
summary judgment to TVA on this claim, determined that
Plaintiff failed to establish a prima facie case of
discrimination with respect to this claim because he was not
qualified for the position for which he applied. The minimum
qualifications listed in the job posting were:
Bachelors degree in industrial safety or equivalent
experience and six (6) years of comprehensive loss
control experience in power plant operations and
maintenance safety/security process integration. Strong
communication and analytical skills. Must have
successfully demonstrated the defined competencies of
r e l a t i o ns h i p b u i l d i n g , s e r v i c e a t t i t u d e ,
flexibility/adaptability, initiative/independence,
creativity/innovation, customer focus continuous
improvement, technical knowledge, leadership, and
organization and planning.
(J.A. at 1413.) Plaintiff applied for the position but was
neither selected nor granted an interview. Kenneth S.
McVay, Industrial Safety Manager of Programs for the Fossil
Power Group, testified at his deposition that because he
received over forty applications for the Project Manager,
Safety position, he decided to interview only those applicants
with supervisory or managerial experience, which Plaintiff
apparently lacked. McVay also testified that Plaintiff lacked

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No. 01-5953 Seay v. Tennessee Valley Authority et al. 11
the necessary six years of loss-control experience in a power
plant.
At issue on appeal are the third and fourth prongs of the
prima facie test, as well as TVA’s asserted legitimate
explanation for not selecting Plaintiff. Specifically, the
parties dispute the following: (1) whether Plaintiff possessed
the minimum qualifications (specifically, six years of loss
control experience in power plant operations); (2) whether the
selectees possessed the minimum qualifications; (3) whether
Plaintiff and the selectees were “similarly-situated,” and
(4) whether TVA’s decision to interview only those
applicants with management experience constituted a
legitimate nondiscriminatory reason for Plaintiff’s non-
selection.
As to the third prong (i.e., Plaintiff’s qualifications),
McVay’s testimony appears to have conceded that Plaintiff
had “six years of various levels of safety experience.” (J.A.
at 1303.) However, the posted criteria for the position
required the loss control experience to be obtained in power
plant operations. A review of Plaintiff’s resume and
application does not reveal any references to “power plant” or
any sort of plant. Therefore, Plaintiff has not established that
he was qualified for the job based on TVA’s posted
qualifications.
This does not end the inquiry, however, because although
posted minimum requirements often dictate which applicants
are qualified and which are not, this does not always hold
true. As the Supreme Court has repeatedly emphasized, “the
precise requirements of a prima facie case can vary depending
on the context and were ‘never intended to be rigid,
mechanized, or ritualistic.’” Swierkiewicz v. Sorema N. A.,
534 U.S. 506, 512 (2002) (quoting Furnco Constr. Corp. v.
Waters, 438 U.S. 567, 577 (1978)). Thus, where a selectee
does not appear to meet the posted qualifications, a genuine
issue of material fact may exist as to whether the posted
minimum requirements actually dictated the criteria the
12 Seay v. Tennessee Valley Authority et al. No. 01-5953
2Of course, an emplo yment discrimination p laintiff does not
autom atically survive summ ary judgment whenever the better-treated
employee fails to possess all stated qualifications. For instance, if neither
cand idate meets all stated criteria, but it is apparent from the record that
the selectee is obviously better qualified than the plaintiff, then summary
judgment would be appropriate.
employer used in selecting applicants for the posted job. See
Wilburn v. Dial Corp., 724 F. Supp. 521, 528-29 (W.D. Tenn.
1989) (denying summary judgment where a black female
plaintiff was refused a promotion because she lacked the
requisite managerial experience, but the white male who
received the promotion lacked the educational requirement);
1 LEX K. LARSON, EMPLOYMENT DISCRIMINATION § 8.02[3],
at 8-29 (2d ed. 2003) (“A court may be inclined not to take
the employer’s stated qualifications seriously when in fact the
employer does not consistently adhere to those stated
qualifications when making employment decisions.”). When
neither the plaintiff nor the selectee meets all the stated
criteria, the qualified prong is satisfied for summary judgment
purposes, because a genuine issue of material fact arises as to
whether the posted standards actually dictated whether
Plaintiff was qualified.2
Here, Plaintiff points to two of the five selectees, Henry
Ziegler and Charles Proffitt, and argues that they did not meet
the posted qualifications for the position either. Plaintiff
observes that Ziegler did not possess a bachelor’s degree in
industrial safety, which is listed among the posted minimum
requirements, whereas Plaintiff did possess such a degree.
Ziegler instead possessed a bachelor’s degree in industrial
engineering. Plaintiff also notes that Proffitt possessed no
college degree at all, but only a high school education. He
further argues that Proffitt lacked the six years of health and
safety experience because he was only an electrician. TVA
counters that Ziegler’s industrial engineering degree
constituted an equivalent degree, and that although Proffitt
did not have a college degree and was a trained electrician, he
possessed equivalent experience because, in addition to his

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No. 01-5953 Seay v. Tennessee Valley Authority et al. 13
electrician position, he was a Health and Safety Manager at
TVA’s Gallatin Steam Plant for the twelve years just prior to
his selection, i.e., from 1985 to 1997.
We are not persuaded by TVA’s arguments. Based on the
minimum qualifications posted in the job announcement,
Ziegler was required either to hold a bachelor’s degree in
industrial safety or to possess equivalent experience. TVA
argues that Ziegler possessed an equivalent degree, but that
is not what TVA’s posted minimum qualifications stated.
Even if the language of the posting could (or should) be
interpreted in such a manner, it is unclear on this record that
a degree in industrial engineering is equivalent to a degree in
industrial safety. This seems to be particularly critical here,
where the position is for a manager in safety, not engineering.
Moreover, it is unclear from the record that Proffitt
possessed twelve years of health and safety experience. All
of the early experience listed on his resume relates to
electrician work. The first mention of health and safety is on
page two of the resume, under “September 1985-Present,”
where it states that Proffitt maintained dual roles as a
maintenance electrician and acting manager of health and
safety. However, under this entry the resume lists no health
and safety-related experience. Instead it lists the following:
“Maintained all plant electrical equipment”; “Maintained
161KV switchyard & transformer yard”; and “Maintained all
yard operations electrical equipment.” (J.A. at 1021.) Page
four of the resume states, among other things, “Experience:
Health and Safety Manager,” and lists some accompanying
responsibilities. (J.A. at 1023.) However, this listing
includes no dates to indicate at what point Proffitt served as
a health and safety manager. And while the resume lists a
number of teams, it does not indicate how long Proffitt served
on any of those teams for purposes of determining whether he
had six years of health and safety experience.
McVay’s deposition testimony has further confused the
issue. When asked to point on the resume to where Proffitt
14 Seay v. Tennessee Valley Authority et al. No. 01-5953
had any loss control experience prior to 1992, McVay replied,
“I can’t do that.” (J.A. at 1323.) After 1992, Plaintiff points
out, and TVA does not disagree, that Proffitt was officially
employed as a Maintenance Electrician. McVay’s testimony
creates two problems. First, it tends to contradict TVA’s
representation that Proffitt possessed twelve (or even six)
years of health and safety experience prior to receiving the
Project Manager, Safety position in 1997. Second, if Proffitt
did not begin to acquire health and safety experience until
1992, then it would have been impossible for him to have
completed six years of loss control experience by the time he
received the position in 1997.
The record does not support TVA’s contention that Proffitt
and Ziegler met the minimum qualifications for the Project
Manager, Safety position as advertised in the job posting.
Thus, a genuine issue of material fact remains as to whether
those posted qualifications served as the actual guidelines by
which applicants’ qualifications were determined. Therefore,
Plaintiff has satisfied the third prong of his prima facie case,
for purposes of summary judgment.
As to the fourth prong, it is not apparent from the record
that selectees Proffitt and Ziegler were better qualified than
Plaintiff for the Project Manager, Safety position. The record
does not support TVA’s representations that these two
selectees possessed the requisite degree or the equivalent
experience, or that Proffitt possessed six years of loss control
experience, the lack of which supposedly doomed Plaintiff’s
application. In other words, Proffitt and Ziegler were
similarly-situated to Plaintiff in that they possessed
qualifications that, based on the record, appear to be equal to
or less than Plaintiff’s qualifications. Therefore, we find that
Plaintiff has satisfied the fourth prong of his prima facie case.
Because Plaintiff has met his prima facie burden for
purposes of summary judgment, we now consider TVA’s
argument that it possessed a legitimate nondiscriminatory
reason for not hiring Plaintiff. Specifically, TVA argues that

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No. 01-5953 Seay v. Tennessee Valley Authority et al. 15
McVay’s decision to reduce the applicant pool by considering
only the applicants with management experience (a
qualification not listed among the stated criteria in the job
posting) constituted a legitimate nondiscriminatory reason for
Plaintiff’s non-selection. However, we are not persuaded. As
discussed earlier, when an employer presents a legitimate
nondiscriminatory reason for an adverse employment action,
the employee must demonstrate that a genuine issue of
material fact exists as to whether the asserted reason is a
pretext for discrimination. Burdine, 450 U.S. at 253.
In the instant case, TVA’s proffered legitimate explanation
is insufficient to explain Plaintiff’s non-selection. Hopson,
306 F.3d at 434. If McVay had been seeking a way to reduce
his applicant pool, it appears that the obvious first step would
have been to eliminate those applicants who did not meet the
stated qualifications before using unstated qualifications to
further eliminate applicants. Yet, selectees Ziegler and
Proffitt remained in the applicant pool, despite the fact that
neither met the stated criteria and despite McVay’s ostensible
need to reduce his large applicant pool. This inconsistency
tends to undermine TVA’s legitimate nondiscriminatory
explanation and raises “an inference [of pretext] that must be
drawn, at summary judgment, in favor of the nonmovant.”
Wexler v. White’s Furniture, Inc., 317 F.3d 564, 577-78 (6th
Cir. 2003) (en banc). Therefore, we reverse the district
court’s grant of summary judgment in favor of TVA on Count
75 and remand the claim for a trial.
C. Count 67: The Methods Team Specialist (Plant
Operations) Position
Next, Plaintiff challenges the dismissal of his claim
concerning his non-selection for the Methods Team Specialist
(Plant Operations) position. In dismissing the claim, the
district court concluded that the claim was time-barred and
that equitable tolling did not apply. Plaintiff acknowledges
on appeal that he filed suit late on this claim, but he contends
that he was entitled to maintain the suit based on equitable
16 Seay v. Tennessee Valley Authority et al. No. 01-5953
tolling principles. We agree with Plaintiff and therefore
reverse the district court’s dismissal of this claim.
The facts demonstrate that on November 22, 1997 Plaintiff
filed an EEO complaint regarding his non-selection for this
position. On December 9, 1997, TVA’s EOC organization
issued a final agency decision (FAD), dismissing Plaintiff’s
EEO complaint on the grounds that the Methods Team
Specialist position had not been filled. Plaintiff received the
FAD, which was sent via certified mail, on December 19,
1997, but he did not file a claim regarding this non-selection
in federal court until November 17, 1999.
In the course of preparing a pre-complaint counseling
report (“PCCR”), Lynn Talley, Manager of Counseling and
Analysis in TVA’s EOC organization, asked TVA’s human
resources department about the status of the job vacancy. The
human resources department responded by letter dated
December 5, 1997, stating the following:
Management made a decision not to fill the PG-8
position but to utilize the headcount and budget to further
develop a current employee in preparation for a site
position. Mr. Albert J. Salatka was rotated into this
position at the PG-5 level for the purpose of
development. Once this developmental process is
complete, Mr. Salatka will no longer occupy the
headcount in the Process Methods organization.
Management will then make a decision as to whether or
not to fill the PG-8 position.
As indicated above, the position . . . has not been filled;
therefore, no selection has been made. If the position is
to be filled in the future, it will be re-posted and the
selection process completed.
(J.A. at 737.) The FAD indicated that “no one was selected
for this position,” that applications . . . were never reviewed
nor any qualifications of candidates ever compared,” and that

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No. 01-5953 Seay v. Tennessee Valley Authority et al. 17
Plaintiff’s allegation of discrimination was therefore
“premature.” (J.A. at 201.) Although the FAD mentioned the
December 5, 1997 letter from TVA’s human resources
department, it did not mention the letter’s explanation to the
effect that Salatka had been rotated into the position for
“developmental” purposes.
Plaintiff argues that he was entitled to equitable tolling
because TVA purposely withheld the critical information that
Salatka, a white man, had been “given” the job, and that had
Plaintiff known this information he would have filed a lawsuit
with regard to that non-selection in a timely fashion. TVA
insists that it did not mislead Plaintiff because the job position
had not been filled, and that the decision to rotate Salatka into
the position was in the December 5, 1997 letter, of which the
FAD made Plaintiff aware. Thus, TVA argues, Plaintiff
failed to discover that Salatka was carrying out the duties of
the position because of his own lack of due diligence. The
district court agreed with TVA’s interpretation of the facts
and declined to apply equitable tolling.
A Title VII plaintiff ordinarily must file a civil action
within ninety days of receiving a notice of dismissal and right
to sue from the Equal Employment Opportunity Commission
(EEOC). See 42 U.S.C. § 2000e-5(f)(1). However, because
this requirement is not jurisdictional, a court may apply
equitable tolling, which “‘permits a plaintiff to avoid the bar
of the statute of limitations if despite all due diligence he is
unable to obtain vital information bearing on the existence of
his claim.’” EEOC v. Ky. State Police Dep’t, 80 F.3d 1086,
1095 (6th Cir. 1996) (quoting Cada v. Baxter Healthcare
Corp., 920 F.2d 446, 451 (7th Cir. 1990)). We review a
district court’s decision to grant or deny equitable tolling de
novo when the facts are undisputed or the district court rules,
as a matter of law, that equitable tolling is not available; in all
other circumstances we review for an abuse of discretion.
Amini v. Oberlin Coll., 259 F.3d 493, 498 (6th Cir. 2001)
(quoting Dunlap v. United States, 250 F.3d 1001, 1007 n.2
(6th Cir. 2001)).
18 Seay v. Tennessee Valley Authority et al. No. 01-5953
Because the parties dispute some of the facts, we review the
district court’s denial for an abuse of discretion. Id. We
consider five factors in determining whether equitable tolling
should be allowed: “1) lack of notice of the filing
requirement; 2) lack of constructive knowledge of the filing
requirement; 3) diligence in pursuing one’s rights; 4) absence
of prejudice to the defendant; and 5) the plaintiff’s
reasonableness [in] remaining ignorant of the particular legal
requirement.” Truitt v. County of Wayne, 148 F.3d 644, 648
(6th Cir. 1998) (citing Andrews v. Orr, 851 F.2d 146, 151
(6th Cir. 1988)). Regarding the third factor, a plaintiff must
demonstrate facts showing his or her diligence in pursuing the
claim. See Morgan v. Washington Mfg. Co., 660 F.2d 710,
712 (6th Cir. 1981). However, these factors are not exclusive
bases upon which to apply equitable tolling; thus, the decision
to equitably toll the limitations period is made on a case-by-
base basis. Truitt, 148 F.3d at 648. A district court need not
find that the employer willfully engaged in wrongful conduct
to allow equitable tolling. See Andrews, 851 F.2d at 151.
Nevertheless, the doctrine of equitable tolling is restricted and
to be carefully applied. Id. (citations omitted).
We find that the district court did abuse its discretion in
declining to extend equitable tolling to Plaintiff. In this case,
the FAD informed Plaintiff that no one received the job and
no applications were reviewed, but it omitted the additional
information that Salatka was performing the job duties for
“developmental” purposes. This was the critical information
Plaintiff needed to raise his suspicions about TVA’s possible
racially discriminatory motive in rejecting him. Although the
FAD referenced the December 5, 1997 letter that mentioned
Salatka’s selection, the reality remains that the explanation in
the FAD was misleading. It implied that nobody took on the
job responsibilities, when in fact TVA placed Salatka in the
position, albeit at his current PG-5, rather than PG-8, level.
Plaintiff, in reliance, did not pursue his EEO complaint for
this non-selection. Because the explanation in the FAD
misrepresented the circumstances surrounding the non-
selection, Plaintiff did not need to request a copy of the

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No. 01-5953 Seay v. Tennessee Valley Authority et al. 19
December 5, 1997 letter to be reasonably diligent. We
therefore hold that equitable tolling should have been granted
and that the district court abused its discretion in holding
otherwise. Because neither of the parties discuss the
underlying merits of this non-selection claim on appeal, we
remand Count 67 to the district court for further consideration
of the claim’s merits.
IV
Plaintiff also challenges his RIF, asserting various theories
under which the RIF was wrongful. We address each of his
claims in connection with the RIF below.
A. Exhaustion of Administrative Remedies
Before addressing the merits of these claims, however, we
turn our attention to the district court’s dismissal of Counts
126, 127, and 131 on procedural grounds. In so dismissing,
the district court stated that Plaintiff had failed to exhaust his
administrative remedies. On appeal, Plaintiff argues that he
did comply with the administrative provisions for “mixed
case” complaints by waiting the requisite period of time after
filing an EEO complaint before initiating a civil action in the
district court.
We agree with Plaintiff. A “mixed case” complaint “is a
complaint of employment discrimination filed with a federal
agency based on race, color, religion, sex, national origin, age
or handicap related to or stemming from an action that can be
appealed to the Merit Systems Protection Board (MSPB).”
29 C.F.R. § 1614.302(a)(1). A “mixed case” complaint may
be filed with the employer-agency’s EEO process (pursuant
to 29 C.F.R. § 1614.302) or with the MSPB (pursuant to
5 C.F.R. § 1201.151), but not with both. Id. § 1614.302(b).
If the “mixed case” complaint is filed with the federal agent’s
EEO process and a FAD is not issued within 120 days of the
date of filing, “the complainant may appeal the matter to the
MSPB at any time thereafter as specified at 5 C.F.R.
20 Seay v. Tennessee Valley Authority et al. No. 01-5953
1201.154(b)(2) or may file a civil action as specified at
§ 1614.310(g), but not both.” Id. § 1614.302(d)(1)(i); see
also 5 U.S.C. § 7702(a)(2) (noting that an agency decision on
a “mixed case” complaint “shall be a judicially reviewable
action unless the employee appeals the matter to the
[MSPB]”). It is not disputed that Plaintiff had a “mixed
case,” that he filed a “mixed case” complaint through TVA’s
EEO process, that a FAD was not issued within 120 days, and
that Plaintiff thereafter filed a civil action in the district court.
TVA argues on appeal that after TVA failed to issue the
FAD within 120 days, Plaintiff was required to appeal the
action to the MSPB and develop an administrative record for
the district court to review. TVA’s argument is two-fold.
First, it notes that Plaintiff, subsequent to filing his civil
action, abandoned his claims of discrimination regarding the
RIF. TVA argues that once Plaintiff abandoned the
discrimination claims, his “mixed case” complaint ceased and
the district court lost jurisdiction over the nondiscrimination
claims. For this argument TVA relies on the following text
from Noble v. Tennessee Valley Authority, 892 F.2d 1013
(Fed. Cir. 1989) (en banc):
In this court, Noble has abandoned his discrimination
claims, instead basing his petition solely on the failure of
the MSPB to require the TVA to honor his
reemployment rights under the [Veterans Preference
Act]. Accordingly, this is no longer a “mixed” case and
jurisdiction over this matter lies, if at all, in this court.
Id. at 1014. TVA asserts that Plaintiff instead should have
brought his nondiscrimination claims regarding his RIF to the
MSPB and then sought judicial review, if necessary, with the
Federal Circuit, where exclusive jurisdiction ostensibly lies in
this situation.
TVA is mistaken. Noble does not stand for the proposition
that jurisdiction lies only in the Federal Circuit when a
“mixed case” complaint already brought into a federal district

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No. 01-5953 Seay v. Tennessee Valley Authority et al. 21
court later abandons its discrimination component. Rather,
the quoted excerpt from Noble was referring to the fact that
the Federal Circuit lacks jurisdiction to consider “mixed case”
complaints. See id. at 1014; see also Williams v. Dep’t of
Army, 715 F.2d 1485, 1487 (Fed. Cir. 1983) (en banc). Thus,
the Noble court was essentially insuring that it had
jurisdiction over the appeal before it. And while it is true that
the Federal Circuit has exclusive jurisdiction over appeals
from the MSPB’s final decisions as to non-“mixed case”
complaints, 28 U.S.C. § 1295(a)(9), the present action was
not appealed from the MSPB; it was appealed from the EEO
process. Thus, Noble does not control the issue at hand.
A review of 29 C.F.R. § 1614.302(a)(1) and (d)(1)(i)
establishes that a plaintiff may properly bring a “mixed case”
complaint through an employer-agency’s EEO process, and
then, if the agency takes no action within 120 days, bring the
“mixed case” complaint to the district court. The language of
these regulations indicates nothing to the contrary.
Our view is bolstered by cases from other circuits that have
considered what happens when a “mixed case” complaint,
properly appealed to the district court from the MSPB,
subsequently loses its discrimination component. The D.C.
Circuit declined to hold that the subsequent dismissal of the
discrimination portion of a “mixed case” complaint vitiated
the district court’s subject matter jurisdiction, reasoning that
jurisdiction properly existed at the time the “mixed case”
complaint was filed with the district court and that no
statutory authority exists “suggest[ing] that the jurisdiction
thereby conferred on the district court dissolves upon
dismissal of one claim where original jurisdiction otherwise
properly exists.” Evono v. Reno, 216 F.3d 1105, 1109 (D.C.
Cir. 2000). In considering similar procedural facts, the Fourth
Circuit held that a nondiscrimination claim should not be
dismissed under these circumstances, so long as the
discrimination claim was not a “sham or frivolous,” and that
the district court had the discretion either to retain the case or
to transfer it to the Federal Circuit, which had attained
22 Seay v. Tennessee Valley Authority et al. No. 01-5953
jurisdiction by virtue of the discrimination claim’s subsequent
elimination. Afifi v. United States Dep’t of Interior, 924 F.2d
61, 63-64 (4th Cir. 1991).
Unlike Afifi, this case presents no opportunity for a transfer
to the Federal Circuit, because it originated from the EEO
process, not the MSPB. However, the reasoning is directly on
point: A plaintiff ordinarily should not be punished (by way
of dismissal) for events unforeseen at the time the case was
filed. Moreover, at no time has either party or the district
court suggested that the discrimination claim Plaintiff
voluntarily dismissed was a sham or frivolous. Id. at 64.
TVA also argues that even if subject matter jurisdiction
existed, Plaintiff waived his rights to pursue Counts 126, 127,
and 131 because he voluntarily abandoned the discrimination
components of these claims and consequently failed to
develop an administrative record at the MSPB. TVA’s
rationale is that while Title VII claims are reviewed by the
district court de novo, procedural claims are reviewable only
on the record, pursuant to 5 U.S.C. § 7703(c), the statute
controlling MSPB procedure.
We disagree. On-the-record review is required for
nondiscrimination claims only if the “mixed case” complaint
is appealed from the MSPB. In contrast, a “mixed case”
complaint from an agency’s EEO process, on judicial review
at a district court, is reviewed de novo. This can be found
right in the statutory language regarding appeals: “Nothing
in this section shall be construed to affect the right to trial de
novo under any provision of law described in subsection
(a)(1) of this section after a judicially reviewable action,
including the decision of an agency under subsection (a)(2)
of this section.” 5 U.S.C. § 7702(e)(3) (emphasis added).
Subsection (a)(2) refers to “any matter before an agency
which involves (A) any action described in paragraph (1)(A)
of this subsection [i.e., an action which the employee or
applicant may appeal to the MSPB]; and (B) any issue of
discrimination prohibited under any provision of law

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No. 01-5953 Seay v. Tennessee Valley Authority et al. 23
3TVA relies principally on two cases for the proposition that
nondiscrimination claims m ust always be reviewed on an administrative
record. The first is Johnson v. Burnley, 887 F.2d 4 71, 474 n.1 (4th Cir.
1989), vacated en banc and appeal dismissed, 887 F.2d at 471, which
stated that “[i]n a m ixed case . . . the discrimination claim receives a de
novo trial in the district court, while the non-discrimina tion claim is
reviewed on the record.” (citations omitted) Ho wever, Johnson was
speaking of judicial review in the co ntext of a case appealed from the
MSPB. In the present case, P laintiff is appealing from TV A’s EEO
process.
TVA also cites Mason v. Frank, 32 F.3d 315 (8th Cir. 1994). At the
district court the Mason plaintiff successfully ob jected to the entry of the
MSPB into the record beca use he was pursuing his discrimination claim
only and the M SPB record was therefore irrelevant. Id. at 31 8. The
Eighth Circuit held that Plaintiff could not subsequently reassert the
nondiscrimination claim after having prevented the MSPB record from
being entered at the district co urt. Id. Mason is distinguishable on two
bases. First, the Mason plaintiff, like the Johnson plaintiff, appealed his
“mixed case” complaint to the district court from the MSPB . Second, the
court’s reasoning was based on principles of estoppel, not any statutory
authority requiring an administrative record . Thus, Mason is inapp osite
as well.
described in paragraph (1)(B) of this subsection.” 5 U.S.C.
§ 7702(a)(2). In other words, subsection (a)(2) refers to any
cause of action encompassing an MSPB claim and a
discrimination claim. It refers to a mixed claim. If a district
court may analyze the MSPB issues de novo when a “mixed
case” complaint is appealed from an agency’s EEO process,
the subsequent abandonment of the discrimination claim in
the district court cannot make the necessity for an
administrative record suddenly appear. TVA cannot point to
any statutory authority to indicate that a plaintiff is to be
disadvantaged in retrospect for abandoning a claim after
initially pursuing the claim in district court, or that
nondiscrimination claims must always be reviewed on an
administrative record.3
Thus, we hold that subject matter jurisdiction exists over
these nondiscrimination claims. Moreover, Plaintiff was not
24 Seay v. Tennessee Valley Authority et al. No. 01-5953
required to develop an administrative record with respect to
his nondiscrimination claims because claims, when appealed
from an agency’s EEO process, are reviewed de novo.
Consequently, Plaintiff did not waive any right to have his
nondiscrimination claim heard by the district court, and the
district court erred in ruling otherwise. We therefore will
address the merits of those decisions now.
B. Count 123--Violation of TVA’s Hiring and Retention
Policy for Disabled Veterans
Plaintiff argues that the district court erred in dismissing his
challenge to enforce TVA’s hiring and retention policy for
disabled veterans. The policy reads as follows:
The Tennessee Valley Authority (TVA) has an up-to-
date Affirmative Action Plan (Plan) that is committed to
the hiring, retention, and advancement of disabled
veterans. This Plan is consistent with statutory
requirements under Title 38 U.S.C., Section 2015(c),
included as part of TVA’s affirmative action obligations
for the disabled under Section 501(b) of the
Rehabilitation Act of 1973.
TVA is committed to ensuring affirmative action for the
employment and advancement of qualified disabled
veterans, especially those veterans who are rated at 30
percent or more disabled. No individual may be denied
employment, developmental opportunities, or
advancement, nor may disciplinary action be taken
against him/her solely because of physical or mental
disability.
This commitment to employ, retain, and advance
qualified disabled veterans shall apply to all supervisors,
managers, and other officials in a position to influence
personnel policies/practices.

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No. 01-5953 Seay v. Tennessee Valley Authority et al. 25
(J.A. at 426.) The district court held that no private cause of
action existed for Plaintiff to enforce a corporately-adopted
plan. Plaintiff argues on appeal that because TVA’s policy is
federally mandated, a private cause of action exists to enforce
the affirmative action benefits contained therein. Specifically,
Plaintiff points to § 501(b) of the Rehabilitation Act of 1973,
29 U.S.C. § 791(b), which requires federal employers to adopt
an affirmative action policy for the hiring, placement, and
advancement of disabled individuals, and § 403(c) of the
Vietnam Era Veterans’ Readjustment Assistance Act
(VEVRA), 38 U.S.C. § 4214(c), which requires employers
who enter into certain contracts with the United States to
adopt “a separate specification of plans . . . to promote and
carry out such affirmative action with respect to disabled
veterans in order to achieve the purpose of this section.”
As an initial matter, it is not entirely clear whether this
policy to which Plaintiff points is federally mandated.
Although the parties agree that TVA is subject to § 501 of the
Rehabilitation Act and § 403 of VEVRA, TVA maintains that
the policy is voluntary and that there exists a “separate
specification” under its Rehabilitation Act-mandated policy.
However, TVA fails to point to anything in the record that
would constitute the “separate specification” that VEVRA
requires. At any rate, we need not decide this issue because
even if this policy is the VEVRA-required “separate
specification,” no private remedy exists. We have already
held that VEVRA does not extend a private cause of action to
aggrieved veterans such as Plaintiff. Harris v. Adams, 873
F.2d 929, 932 (6th Cir. 1989). Although Plaintiff argues that
not allowing a private right of action would render § 4214
meaningless, this is not the case. As we previously explained,
“veterans who believe themselves to be victims of
discrimination may complain to the Secretary of Labor, who
enforces [VEVRA] administratively.” Id. at 931 (citing
predecessor to 38 U.S.C. § 4212(b)).
Plaintiff contends alternatively that the Rehabilitation Act
provides a private remedy. However, the Rehabilitation Act
26 Seay v. Tennessee Valley Authority et al. No. 01-5953
4TVA also suggests that an action upon any o ther basis (other than
VEVRA or the R ehab ilitation Act) is preemp ted by the Civil Service
Reform Act of 197 8, Pub. L. No. 95-454, 9 2 Stat. 111 1 (co dified in
various sections of titles 5, 10, 15, 28, 31, 38, 39, and 4 2 U.S.C.).
Because of our determination that no private remed y exists for P laintiff,
we need not reach this issue.
does not require an affirmative action policy for disabled
veterans. Section 501 of the Act requires each federal agency
to submit “an affirmative action program plan for the hiring,
placement, and advancement of individuals with disabilities
in such department, agency, instrumentality, or Institution.”
29 U.S.C. § 791(b). To this end, § 501 provides a private
remedy for individuals who encounter discrimination on the
basis of disability. Mahon v. Crowell, 295 F.3d 585, 589 n.2
(6th Cir. 2002). However, we do not read the Rehabilitation
Act as extending its private remedy to the rights contained in
VEVRA. The only nexus between the Rehabilitation Act and
VEVRA is that VEVRA requires a “separate specification”
for disabled veterans to be included in the Rehabilitation Act-
required affirmative action policy for disabled individuals.
The fact that VEVRA references the Rehabilitation Act for
this purpose does not mean it implicitly incorporates all rights
contained in the Rehabilitation Act into VEVRA. See Antol
v. Perry, 82 F.3d 1291, 1297 (3d Cir. 1996) (rejecting the
plaintiff’s argument that Congress’ amendment of the
Rehabilitation Act to waive sovereign immunity and include
a private remedy for aggrieved disabled individuals meant
that § 403 of VEVRA was also implicitly amended, and
reasoning that it could not “enlarge the waiver [of sovereign
immunity] in the Rehabilitation Act ‘beyond what the
language of the statute requires’”) (quoting United States v.
Idaho ex rel. Dir., Idaho Dep’t of Water Res., 508 U.S. 1, 7
(1993)). Therefore, no private remedy exists for Plaintiff on
this issue.4

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No. 01-5953 Seay v. Tennessee Valley Authority et al. 27
C. Count 125: Violation of Supplementary Agreement
10 to the Collective Bargaining Agreement
Next, Plaintiff challenges the district court’s dismissal of
Count 125 of his amended complaint, which alleged that TVA
violated his reemployment RIF rights under its own policy for
displaced policy veterans, namely, a document known as
“Supplementary Agreement 10,” which is part of the
collective bargaining agreement between TVA and the union
representing TVA’s employees. Specifically, Supplementary
Agreement 10 “governs the elimination of positions and
termination of employees through a [RIF].” (J.A. at 392, 394-
404.) It provides to “RIF’d” employees an opportunity to be
placed on a reemployment list for up to two years following
termination “for jobs for which the employee indicates
interest and availability at the time of separation and which
are in the same classes as jobs he/she has held in TVA.” (J.A.
at 397.) The Supplementary Agreement also includes a
veterans’ preference in rehiring.
It does not appear to be disputed that Plaintiff received his
veterans’ preference regarding the RIF; i.e., among the
employees in his work group, he was the last to be subjected
to the RIF, but because the entire department was eliminated,
he, as well as his coworkers, was RIF’d. Plaintiff contends,
however, that TVA did not follow Supplementary Agreement
10 with respect to rehiring preferences. Plaintiff notes that his
colleague Ronald Stamps, another Safety Specialist in the
Labor and Safety department who was terminated at the same
time as Plaintiff, subsequently received a position that
became available. Plaintiff contends that Stamps’ rehire
contravened Supplementary Agreement 10, which required
TVA to offer the job to Plaintiff first. Plaintiff also contends
that pursuant to Supplementary Agreement 10, he should
have been offered positions less senior to the one he held at
the time of his RIF. Plaintiff was ranked SD-4 at the time of
his RIF, and he had previously been employed in the SD-3
classification. Plaintiff claims TVA violated Supplementary
Agreement 10 by failing to offer him a reassignment to any of
28 Seay v. Tennessee Valley Authority et al. No. 01-5953
the available SD-3 positions or reemployment to those
positions after his termination.
Because Plaintiff did not follow the grievance procedure for
alleged contractual violations, the district court dismissed this
claim for failure to exhaust administrative remedies. TVA
asserts the district court’s reasoning on appeal. Plaintiff
argues that he was not required to follow the grievance
procedure because TVA had adopted Supplementary
Agreement 10 as its corporate policy, and therefore the
collective bargaining agreement grievance procedures did not
apply. However, the record reflects no evidence that TVA
adopted Supplementary Agreement 10 as its corporate policy,
and we will not make this finding now.
Plaintiff argues alternatively that Supplementary
Agreement 11 of the collective bargaining agreement allows
claimants to bypass the grievance procedure. Supplementary
Agreement 11 provides that “[i]f an appeal or formal
complaint with respect to an action, matter, or proposed
action is or has been filed under a separate procedure
provided by law or Federal regulations, a grievance regarding
such action, matter, or proposed action will not be considered
or, if in progress, will not be further considered or decided
under this agreement.” (J.A. at 403-04.) Plaintiff argues that
because he placed his grievance about Supplementary
Agreement 10 in his “mixed case” complaint filed through
TVA’s EEO process, he could not simultaneously pursue the
complaint through the collective bargaining agreement
grievance process. We agree with Plaintiff that he pursued a
legitimate alternative route, based on the language in
Supplementary Agreement 11.
1. Reemployment Rights
Turning our attention to the merits, Plaintiff’s claim to
reemployment rights fails. The reemployment list policy
enables a RIF’d employee to have his or her name placed on
the list for two years “for jobs for which the employee

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No. 01-5953 Seay v. Tennessee Valley Authority et al. 29
indicates interest and availability at the time of separation and
which are in the same classes as jobs he/she has held in
TVA.” (J.A. at 397.) Plaintiff completed an Interest and
Availability for Reemployment Following RIF form;
however, he listed among the job classifications and grades
for which he wished to be considered only Safety Specialist,
SD-4 grade. Plaintiff did not indicate a desire to be
considered for any SD-3 positions. Therefore, Ronald
Stamps, who indeed was RIF’d on the same day as Plaintiff
and retained a lower preference than Plaintiff, received the
position at issue because the position for which he was
rehired was of the SD-3 grade and Plaintiff did not request to
be considered for this type of job. Therefore, this claim lacks
merit.
2. Reassignment Rights
However, there does appear to be a genuine issue of
material fact regarding whether Plaintiff was afforded his
reassignment rights pursuant to the collective bargaining
agreement. Supplementary Agreement 10 provides that a
RIF’d employee with at least ten years of service “may
displace another employee in the same competitive area, but
in a different competitive level, by application of reduction in
force procedures.” (J.A. at 397.) Thus, applicable RIF’d
employees may be reassigned to any available lower-grade
position they have held on a non-temporary basis. Such
employees are placed on a retention register, which lists the
grade levels for which each employee is eligible and states
whether positions in those grade levels are available.
Among those listed in the Retention Register was Plaintiff,
who was designated “RR [Return Rights to] Safety Specialist,
SD-3 (No position available).” (J.A. at 1160.) The record
indicates that Plaintiff had served in positions of the grade
levels SD-2, SD-3, SE-3, and SE-4. Deposition testimony
from Jimmy Raines, General Manager of Human Resources
at TVA, acknowledged that at least one SD-3 position was
available but was not listed on the retention register. TVA
30 Seay v. Tennessee Valley Authority et al. No. 01-5953
offers no explanation for the discrepancy, but presumably
Plaintiff (or one of his colleagues of comparable or greater
preference) should have been offered the opportunity to be
reassigned to the lower level position, and this evidently did
not happen. A good explanation for the discrepancy still
might exist; however, we find that a genuine issue of material
fact remains as to whether TVA provided to Plaintiff his
reassignment rights pursuant to Supplementary Agreement 10
of TVA’s collective bargaining agreement. Therefore, we
reverse the district court’s grant of summary judgment in
favor of TVA on this claim with respect to Plaintiff’s
reassignment rights.
D. Count 126: Violation of Plaintiff’s Procedural RIF
Rights
In Count 126, Plaintiff had asserted violations of three RIF
rights: (1) veterans’ preference in retention of employees;
(2) “bumping and retreating” rights; and (3) reemployment
rights.
1. Veterans’ Preference in Retention Rights
Plaintiff appears to argue that TVA failed to exercise all
means to retain Plaintiff in his Safety Specialist, SD-4
position when implementing the RIF. However, it is not
disputed that Plaintiff, as a disabled veteran, was placed at the
top of the list (i.e., he would be the last in his department to
be RIF’d). All of the employees in the Safety Specialist
department were RIF’d, and therefore Plaintiff is without a
legitimate complaint in this regard.
2. Bumping and Retreating Rights; Reemployment
Rights
Plaintiff also argues that TVA failed to accord him all of
his bumping, retreating, and reemployment rights, pursuant to
5 C.F.R. § 351.701:

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No. 01-5953 Seay v. Tennessee Valley Authority et al. 31
5However, at least one district court within this circuit has. See
Pulley v. Ten n. Valley A uth., 368 F. Supp. 90, 93 (M.D. Tenn. 1973)
(“TVA employees are not subject to the Civil Service Act, and are no t in
‘competitive service’ as defined in said Act.”) (citations omitted). See
also Jones v. Tenn. Valley Auth., 948 F.2d 258, 262 (6th Cir. 1991)
(observing without discussion that the plaintiff, a TV A preference eligib le
veteran emp loyee, was in the excep ted service).
When a group I or II competitive service employee with
a current annual performance rating of record of
minimally successful (Level 2) or equivalent, or higher,
is released from a competitive level, an agency shall offer
assignment, rather than furlough or separate, in
accordance with paragraphs (b), (c), and (d) of this
section to another competitive position which requires no
reduction, or the lease [sic] possible reduction, in
representative rate.
Id. § 351.701(a). Subsections (b) and (c) detail the
requirements for “bumping” (the right of one employee to
displace another employee in a lower subgroup) and
“retreating” (the right to take a position within the same
subgroup but held by someone with a lower retention
standing). Id. § 351.701(b), (c). Plaintiff argues that TVA
only considered him for a SD-3 position, when in fact his
bumping privileges entitled him to consideration for SD-2 and
SD-1 positions as well. Plaintiff also argues that TVA did not
accord him his retreating privileges either.
However, as TVA correctly points out, § 351.701 applies
only to employees in the competitive service. See 5 C.F.R.
§ 351.701(a). The next question is whether Plaintiff was
employed in the competitive or excepted service. It does not
appear that we have squarely decided this issue,5 but the
Federal Circuit has. In Dodd v. Tennessee Valley Authority,
770 F.2d 1038 (Fed. Cir. 1985), the court looked at the
definition of “competitive service,” under 5 U.S.C. § 2102,
which is “all civil service positions in the executive branch,
except (A) positions which are specifically excepted from the
32 Seay v. Tennessee Valley Authority et al. No. 01-5953
competitive service by or under statute.” 5 U.S.C.
§ 2102(a)(1)(A). The statute authorizing the TVA indicates
that “[t]he board shall without regard to the provisions of
Civil Service laws applicable to officers and employees of the
United States, appoint such managers, assistant managers,
officers, employees, attorneys, and agents as are necessary for
the transaction of its business.” 16 U.S.C. § 831b (emphasis
added). This means that TVA is exempted “from
conditioning its appointments on the passage of a competitive
examination. The competitive examination is the touchstone
of the competitive service.” Dodd, 770 F.2d at 1040. We
agree with the Federal Circuit’s analysis and hold that TVA
employees are not in the competitive service. Consequently,
TVA employees are not entitled to the rights contained in 5
U.S.C. § 2102 or 5 C.F.R. § 351.701. Accordingly, Plaintiff
was not entitled to these retention preferences, and we affirm
the district court’s dismissal of Count 126.
E. Count 127: Violation of Plaintiff’s Substantive RIF
Rights
Plaintiff also challenges his RIF on various substantive
grounds. Specifically, he challenges the “overall legitimacy
of the reorganization” that caused his RIF. In responding to
such a claim, TVA bears the burden to demonstrate, by a
preponderance of the evidence, that the RIF was legitimate
and was properly applied to the individual employees. See
Gandola v. FTC, 773 F.2d 308, 313 (Fed. Cir. 1985) (“If the
agency proves that the reduction in force regulations were
invoked for a legitimate reason and that those regulations
were properly applied to the individual employees . . . the
agency action will be sustained.”) (citation omitted); Wilburn
v. Dep’t of Transp., 757 F.2d 260, 262 (Fed. Cir. 1985) (“An
agency has the burden of demonstrating to the board that its
action is supported by a preponderance of the
evidence . . . .”).
It is not disputed that the RIFs were part of a
reorganization, undertaken by TVA, of several departments.

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No. 01-5953 Seay v. Tennessee Valley Authority et al. 33
A reorganization is an appropriate reason for a RIF. See 5
C.F.R. § 351.201(a)(2) (“Each agency shall follow this part
when it releases a competing employee from his or her
competitive level . . . when the release is required because of
. . . reorganization . . . .”); Gandola, 773 F.2d at 312 (holding
that a RIF taken “to reduce the manpower within the ceiling
allocation” constituted “an appropriate management
consideration”) (internal quotation marks omitted).
Moreover, it is not disputed that the RIF applied to everyone
in Plaintiff’s department; therefore it occurred in an even-
handed manner. Plaintiff’s suspicions about the consultant,
Scott Madden, who had advised TVA to undertake the
reorganization, are insufficient to overcome TVA’s showing
that the RIF occurred pursuant to “bona fide management
considerations.” Gandola, 773 F.2d at 312. Because TVA
met its burden of demonstrating that the RIF was legitimate,
and Plaintiff has not asserted any genuine issue of material
fact to rebut the RIF’s evident legitimacy, we affirm the
district court’s grant of summary judgment to TVA on this
claim.
F. Count 131: Adverse Action as to Plaintiff’s RIF
Rights
Count 131 of Plaintiff’s amended complaint sought a
review of his RIF pursuant to MSPB guidelines. However,
Count 131 does not allege that TVA committed any particular
violation in conducting the RIF. Moreover, on appeal
Plaintiff does not advance any theories to support this claim.
Because we cannot discern from the vague reference to
“MSPB standards” what Plaintiff’s argument is, we affirm the
district court’s dismissal of this count.
V
Plaintiff also challenges his sixty-day suspension for
violating TVA’s vehicle use policy. Count 128 challenged
34 Seay v. Tennessee Valley Authority et al. No. 01-5953
6In an argument similar to that ad vanced regarding Co unts 126, 127,
and 131, TVA argues that the district court p roperly dismissed Count 128
because Plaintiff failed to develop an administrative record with the
MSPB. As we have already discussed, the nondiscrimination compone nt
of a “mixed case” complaint, when appealed from the EEO process, may
properly be reviewed de novo by a district court. See IV.A , supra.
Therefore, TVA ’s argum ent in this regard lacks merit.
the validity of the suspension,6 and Count 129 alleged that
TVA subjected Plaintiff to racially disparate treatment by
suspending him for sixty days, while suspending white
employees for only thirty days for the same offense. TVA’s
vehicle use policy reads as follows:
An officer or employee of the United States Government
or of the District of Columbia government violating
section 1341(a) or 1342 of this title shall be subject to
appropriate administrative discipline including, when
circumstances warrant, suspension from duty without pay
or removal from office.
31 U.S.C. § 1349.
As to Count 128, Plaintiff argues that genuine issues of
material fact remain as to whether the suspension was
appropriate. Specifically, Plaintiff argues that a genuine issue
remained as to whether he willfully violated the policy. In
support, Plaintiff points to the October 7, 1991 issue of
TVA’s daily publication, “TVA Today,” which announced a
change in the vehicle use policy:
Employees may now use TVA vehicles or rental cars for
incidental purposes without getting their supervisors’
permission. The policy change is effective immediately.
Supervisors have been sent background information
about the change to help answer employees’ questions.
Details are in the Oct. 8 issue of Inside TVA.

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No. 01-5953 Seay v. Tennessee Valley Authority et al. 35
(J.A. at 1270.) Plaintiff argues that because TVA started to
allow employees to use the TVA vehicles for incidental
purposes, he thought he was permitted to drive from Raccoon
Mountain to Birmingham for his law school class, which was
139 miles away.
Plaintiff’s argument is insufficient to establish a genuine
issue of material fact. First of all, there is no dispute that the
statute mandates penalties for violators of this statute.
Second, we seriously doubt that any reasonable juror would
believe, in good faith, that a 139-mile trip (one way) is
incidental, or that an employee would reasonably believe that
such a trip was incidental. Because we find that Count 128
lacks merit, we affirm the dismissal of that count.
Plaintiff also argues that the district court erred in
dismissing Count 129 (racially disparate treatment regarding
Plaintiff’s suspension) because genuine issues of material fact
remain as to whether TVA engaged in racial discrimination in
violation of Title VII by suspending Plaintiff for sixty days
when it suspended white violators of the policy for only thirty
days.
In order to establish a prima facie claim of disparate
treatment, a plaintiff must “produce evidence which at a
minimum establishes (1) that he was a member of a protected
class and (2) that for the same or similar conduct he was
treated differently than similarly-situated non-minority
employees.” Mitchell v. Toledo Hosp., 964 F.2d 577, 583
(6th Cir. 1992). Moreover, “the plaintiff must show that the
‘comparables’ are similarly-situated in all respects, absent
other circumstantial or statistical evidence supporting an
inference of discrimination.” Ercegovich v. Goodyear Tire &
Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998) (quoting
Mitchell, 964 F.2d at 583) (internal quotation marks omitted).
This means a plaintiff must “prove that all of the relevant
aspects of his employment situation were ‘nearly identical’ to
those of [the non-minority's] employment situation.” Pierce
36 Seay v. Tennessee Valley Authority et al. No. 01-5953
v. Commonwealth Life Ins. Co., 40 F.3d 796, 802 (6th
Cir.1994).
The parties dispute whether Plaintiff can satisfy the
“similarly-situated” requirement. Plaintiff points to four
employees: Danny Seal (no discipline), Tanveer Khalid (no
discipline), Guy Kidd (thirty-day suspension), and Roy
Mason (thirty-day suspension). Although these employees all
misused TVA vehicles and received less discipline, the facts
surrounding Seal’s, Khalid’s, and Kidd’s violations differ in
relevant respects from the facts surrounding Plaintiff’s
violation. In the cases of Seal and Khalid, TVA’s
investigation determined that their respective supervisors had
approved their misuses of the TVA vehicles (and therefore
those employees were not disciplined because they did not
willfully violate the policy), whereas nobody had approved
Plaintiff’s misuse. Plaintiff has offered nothing to contradict
the accuracy of this finding. Kidd used a TVA vehicle to take
his wife and neighbor to church on one occasion, whereas
Plaintiff received a sixty-day suspension because he misused
a TVA vehicle “on two separate occasions.” (J.A. at 493.)
Because of these relevant differences, we do not believe that
these three non-protected employees Plaintiff identified are
sufficiently “similarly-situated” for Plaintiff to establish his
prima facie case.
However, Plaintiff has also identified Roy Mason, a white
employee who had used a TVA vehicle to haul his boat to a
lake. The record indicates that Mason’s violation was not
approved by any of Mason’s superiors and that the violation
occurred on two occasions. Despite these similarities, Mason
was suspended for only thirty days, while Plaintiff received
sixty days.
TVA nevertheless asserts that Mason is not similarly-
situated because he and Plaintiff worked in different TVA
departments and had different supervisors. It is true that
similarly-situated employees ordinarily “must have dealt with
the same supervisor, have been subject to the same standards

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No. 01-5953 Seay v. Tennessee Valley Authority et al. 37
and have engaged in the same conduct without such
differentiating or mitigating circumstances that would
distinguish their conduct or the employer’s treatment of them
for it.” Mitchell, 964 F.2d at 583 (citations omitted).
However, the “same supervisor” criterium has never been
read as an inflexible requirement. The requirement is
particularly problematic here, where a violation such as
vehicle misuse does not occur frequently enough to invite
such a direct comparison within a compartmentalized
organization. See Ercegovich, 154 F.3d at 353 (noting that
inflexible criteria for establishing the similarly-situated
requirement would mean that “a plaintiff whose job
responsibilities are unique to his or her position will never
successfully establish a prima facie case (absent direct
evidence of discrimination)”). In such cases, we have
emphasized the importance of “mak[ing] an independent
determination as to the relevancy of a particular aspect of the
plaintiff’s employment status and that of the non-protected
employee.” Id. at 352. Thus, a plaintiff “need not
demonstrate an exact correlation with the employee receiving
more favorable treatment” so long as the two employees are
“similar in ‘all of the relevant aspects.’” Id. (citing Pierce,
40 F.3d at 802).
In the present case, the record indicates that the decision to
suspend Plaintiff for sixty days was not made in a vacuum.
Several discussions took place, as well as a meeting in which
participants included Johnson (Plaintiff’s immediate
supervisor), Walters (the Labor Relations and Safety
Department manager and Johnson’s supervisor), a
representative from TVA’s human resources department
(which is involved in any type of disciplinary action), and a
representative from TVA’s legal department. Past discipline
for similar misuses was discussed at that meeting. Thus, all
of the people involved in the decision-making process,
including Plaintiff’s immediate supervisor and the department
manager, were well-aware of the discipline meted out to past
violators, including Roy Mason, who had violated the policy
on at least two occasions. Moreover, TVA does not dispute
38 Seay v. Tennessee Valley Authority et al. No. 01-5953
that Mason and Plaintiff were “subject to the same standards”
or that Mason’s conduct included “differentiating or
mitigating circumstances that would distinguish their conduct
or the employer’s treatment of them for it.” Mitchell, 964
F.2d at 583. Despite the similar circumstances, Plaintiff was
punished for a time period that was twice as long as Mason’s.
We therefore conclude that Plaintiff has demonstrated that he
and Mason were similarly-situated in all relevant respects.
Because Plaintiff satisfied his prima facie case with respect to
Count 129, we reverse the district court’s grant of summary
judgment to TVA on this claim.
VI
Finally, Plaintiff argues that the district court erred in
denying his motion to strike evidentiary submissions TVA
presented with its reply brief. He argues that this was
prejudicial to his case because he was not allowed to respond
to the new evidence TVA submitted with its reply brief.
“We review the decision to grant or deny a motion to strike
for an abuse of discretion, and decisions that are reasonable,
that is, not arbitrary, will not be overturned.” Collazos-Cruz
v. United States, 117 F.3d 1420 (Table), 1997 WL 377037, at
*2 (6th Cir. July 3, 1997) (per curiam) (citing Whitted v. Gen.
Motors Corp., 58 F.3d 1200, 1203 (7th Cir. 1995)); see also
Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1164 (10th Cir.
1998) (applying an abuse of discretion standard to the district
court’s ruling allowing the defendant to file a reply brief but
denying the plaintiffs’ motion to file a surreply brief).
The facts demonstrate that with respect to TVA’s first and
third motions for partial summary judgment, Plaintiff filed
opposition papers, and more than five days later TVA filed
reply briefs, to which it attached additional evidence in the
form of declarations with exhibits. The additional evidence
was not included with TVA’s original motions. Plaintiff filed
motions to strike these evidentiary submissions, and the
district court denied Plaintiff’s motions. Plaintiff argues on

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No. 01-5953 Seay v. Tennessee Valley Authority et al. 39
7Local Rule 7 .1 sets a d efault briefing schedule for motion practice,
providing that “any reply brief and accomp anying material shall be served
and filed no later than 5 days after the service o f the answering brief.”
E.D . TE N N. LOC AL R. 7.1.
8Plaintiff also argues on appeal that the district co urt erred in
allowing evidentiary submissions in TV A’s reply brief in sup port of its
fourth summ ary judgment motion. However, Plaintiff did not move to
strike these evidentiary submissions below; he moved to strike the
amended summary judgment motion. Therefore, we will not consider any
of Plaintiff’s arguments with respect to the fourth summary judgment
motio n here.
appeal that the district court abused its discretion in allowing
these evidentiary submissions because (1) the reply briefs
were not timely filed pursuant to Local Rule 7.1(a) of the
Eastern District of Tennessee,7 and (2) in granting summary
judgment, the district court relied on new evidence in TVA’s
reply briefs without first affording Plaintiff an adequate
opportunity to respond to that new evidence.8
In denying Plaintiff’s motions to strike, the district court
reasoned that TVA’s evidentiary submissions merely pointed
out additional facts that Plaintiff had in his possession and
could have addressed in his response brief, and that the
Federal Rules of Civil Procedure did not preclude TVA from
including these new submissions in its reply brief.
We only partially agree with the district court. Although
the second and third reply briefs were not timely filed in
accordance with Local Rule 7.1, we do not agree with
Plaintiff that it would always be appropriate, barring extreme
circumstances, for us to preclude a submission to the district
court for failure to comply with the requirements of a local
rule. Salehpour v. Univ. of Tenn., 159 F.3d 199, 205 (6th Cir.
1998) (citing Stough v. Mayville Comm’ty Schs., 138 F.3d
612, 614-15 (6th Cir. 1998)). Enforcing timely filing, on
these facts, does not constitute an extreme circumstance. We
therefore are not inclined to reverse based on the district
40 Seay v. Tennessee Valley Authority et al. No. 01-5953
9TVA argues on appeal that Plaintiff could have filed a surreply,
pursuant to Eastern D istrict of T ennessee Local Rule 7.1(d ). See E.D.
TE N N. LOCAL R. 7.1(d). However, this is beside the point, as the district
court granted summary judgment only three days after TVA filed the
reply brief, arguably too swiftly for Plaintiff to have requested a surreply.
TVA also cites Peters v. Lincoln E lectric Co., 285 F.3d 456, 476 -77 (6 th
Cir. 2002), which held that the district court did not err in considering an
affidavit submitted with a reply brief because the plaintiff had an
court’s decision not to strictly enforce Local Rule 7.1.
However, we conclude that the district court was not entitled
to enter summary judgment for TVA under these
circumstances, inasmuch as Plaintiff was not accorded an
adequate opportunity to respond to the new evidence
presented with TVA’s reply briefs.
When new submissions and/or arguments are included in a
reply brief, and a nonmovant’s ability to respond to the new
evidence has been vitiated, a problem arises with respect to
Federal Rule of Civil Procedure 56(c). Rule 56(c) requires
that an adverse party receive ten days notice before a district
court may enter summary judgment. Fed. R. Civ. P. 56(c);
Employers Ins. of Wausau v. Petroleum Specialties, Inc., 69
F.3d 98, 105 (6th Cir. 1995). The purpose of Rule 56(c) is to
afford the nonmoving party notice and a reasonable
opportunity to respond to the moving party’s summary
judgment motion and supporting evidence. See Celotex Corp.
v. Catrett, 477 U.S. 317, 326 (1986) (holding that summary
judgment is to be entered only if the nonmovant is on notice
that it must come forward with all of its evidence). It is only
logical that the purposes of notice and opportunity to respond
extend Rule 56(c) to the situation where the moving party
submits in a reply brief new reasons and evidence in support
of its motion for summary judgment, and require a district
court to allow the nonmoving party an opportunity to respond.
Beaird, 145 F.3d at 1164-65 (citing Cia. Petrolera Caribe,
Inc. v. Arco Caribbean, Inc., 754 F.2d 404, 410 (1st Cir.
1985)). This is particularly true when the district court relies
on the new evidentiary submissions.9

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No. 01-5953 Seay v. Tennessee Valley Authority et al. 41
opp ortunity to respond to the evid ence. However, Peters concerns
Federal Rule of Civil Procedure 6(d), which requires that “[a] written
motion . . . and notice of the hearing thereof shall be served not later than
5 days before the time specified for the hearing.” Fed. R. Civ. P. 6(d).
Even if Peters had concerned the Rule 56(c) context, the fact remains that
the district co urt failed to allow P laintiff a reasonable am ount o f time to
respond in one form or another.
In this case, most of TVA’s additional submissions
consisted of evidence Plaintiff already had included among
his evidentiary submissions to the district court. However, at
least one of TVA’s submissions involved new evidence. The
new evidence concerned a declaration from Rowena Belcher,
General Manager of Human Resources for TVA’s Chief
Operating Officer Fossil Power Group organization. The
declaration was dated March 22, 2001, seven days after
Plaintiff filed his papers in opposition to TVA’s summary
judgment motion. Exhibits C and D attached to the
declaration involved newly-produced evidence. The district
court issued an order granting TVA’s motion just three days
after TVA’s reply brief was filed. In so doing, the court
relied on the Belcher declaration and its attached evidence in
dismissing Count 46 of Plaintiff’s amended complaint. We
therefore hold that the district court abused its discretion in
granting summary judgment so quickly without allowing
Plaintiff an adequate opportunity to respond to the new
evidence.
We need not reverse the dismissals of any other counts in
Plaintiff’s amended complaint. The district court relied on
the new evidence in dismissing only Count 46, and Plaintiff
elected not to appeal the dismissal of this claim. However, in
adjudicating the four counts we remand, the district court is
precluded from considering any of the new submissions
attached to TVA’s first and third reply briefs until Plaintiff
has been provided an adequate opportunity to respond to that
new evidence.
42 Seay v. Tennessee Valley Authority et al. No. 01-5953
VII
For all the foregoing reasons, we AFFIRM the district
court’s grant of summary judgment in favor of TVA on
Counts 15, 123, 125 (with respect to reemployment rights),
126, 127, 128, and 131. However, we REVERSE the grant
of summary judgment in favor of TVA on Counts 67, 75, 125
(with respect to reassignment rights), and 129, as well as the
district court’s denial of Plaintiff’s motion to strike the new
evidentiary submissions attached to TVA’s first and third
reply briefs. We REMAND those claims to the district court
for further consideration not inconsistent with this opinion.

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