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

                                  1
No. 01-5953 Seay v. Tennessee Valley Authority et al.        3    4        Seay v. Tennessee Valley Authority et al. No. 01-5953

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

February 7, 1997, and drove it to his residence in                notified on July 25, 1997 that he would be terminated
Chattanooga, Tennessee. On Monday, February 10, Plaintiff         pursuant to the RIF effective September 26, 1997.
drove the vehicle to Raccoon Mountain, and after finishing
work he drove the vehicle to Miles Law School in                     After learning of his impending RIF termination, Plaintiff
Birmingham, Alabama, some 139 miles away, where he was            contacted an EO counselor and alleged that he was being
attending night classes. He repeated this process on the          terminated due to race discrimination and retaliation for prior
following day, February 11, 1997. Plaintiff admitted to           EOC activity. Plaintiff also applied for approximately forty-
having used the vehicle for unofficial and personal purposes      three vacant job postings at TVA, but he was not selected for
of attending the law school classes on those two nights. He       any of the positions. Plaintiff filed an EEO complaint with
also acknowledged that he had not received permission to use      TVA’s EOC staff for each of these non-selections.
the vehicle for this purpose. The two trips resulted in about
500 additional miles of usage for the TVA vehicle. Plaintiff’s       On September 26, 1997, Plaintiff was terminated from
conduct was discovered, and the matter was referred to the        TVA pursuant to the RIF. Although he was the highest-listed
Office of the Inspector General (OIG) for an investigation.       employee for retention purposes (i.e., he would be the last
After OIG completed its investigation into the matter,            terminated within his group), he was still terminated because
Plaintiff’s supervisor James Johnson issued a Notice of           the entire department was eliminated in the reorganization.
Proposal recommending that Plaintiff receive a sixty-day
suspension because he misused the TVA vehicle “on two               Plaintiff filed another EEO complaint on November 22,
separate occasions.” (J.A. at 493.) Subsequently, Johnson’s       1997 with TVA’s EOC staff. This complaint alleged that he
supervisor, Eugene Walters, issued a Notice of Decision,          was being terminated due to race discrimination. It also
informing Plaintiff of his sixty-day suspension for twice         challenged whether the termination took into consideration
misusing a TVA vehicle. After receiving the notice, Plaintiff     his rights as a disabled veteran and whether the termination
contacted one of TVA’s Equal Opportunity (EO) counselors.         was conducted in accordance with TVA’s collective
He then filed a formal administrative charge, or Equal            bargaining agreement. Because the complaint involved
Employment Opportunity (EEO) complaint, with TVA’s                discrimination claims as well as nondiscrimination claims, the
Equal Opportunity Compliance (EOC) staff, alleging that his       EOC staff accepted Plaintiff’s complaint as a “mixed case”
suspension was due to racial discrimination and retaliation for   complaint, pursuant to 5 U.S.C. § 7702 and 29 C.F.R.
prior EOC activity.                                               § 1614.302.1 Before the EOC director issued a final decision,
                                                                  but more than 120 days after the EOC staff received the
  2.   Plaintiff’s RIF and Non-selections                         complaint, Plaintiff filed the instant civil action.

  In February of 1997, TVA obtained an outside consultant,                                              II
Scott Madden, to conduct a workforce competitiveness study
of several of TVA’s organizations. Pursuant to Madden’s             We review a district court’s grant of summary judgment de
recommendations, TVA decided to undertake a reorganization        novo. Holloway v. Brush, 220 F.3d 767, 772 (6th Cir. 2000)
of four departments, resulting in numerous RIFs throughout        (en banc). Summary judgment is only appropriate where “the
those departments. As part of the reorganization, all of the
Safety Specialist positions were eliminated. Plaintiff was
                                                                      1
                                                                          For a definitio n of “mixed case” comp laint, see Part IV.A , infra.
No. 01-5953 Seay v. Tennessee Valley Authority et al.         7    8     Seay v. Tennessee Valley Authority et al. No. 01-5953

pleadings, depositions, answers to interrogatories, and            production shifts back to the plaintiff to show that the
admissions on file, together with the affidavits, if any, show     defendant’s proffered reason is a pretext for discrimination.
that there is no genuine issue as to any material fact.” Fed. R.   Id. (citing McDonnell Douglas, 411 U.S. at 804). “A plaintiff
Civ. P. 56. The mere existence of some alleged factual             can demonstrate pretext by showing that the proffered reason
dispute in the case will not defeat an otherwise properly          (1) has no basis in fact, (2) did not actually motivate the
supported summary judgment motion. Anderson v. Liberty             defendant’s challenged conduct, or (3) was insufficient to
Lobby, Inc., 477 U.S. 242, 247-48 (1986).                          warrant the challenged conduct.” Hopson v. DaimlerChrysler
                                                                   Corp., 306 F.3d 427, 434 (6th Cir. 2002) (quoting Dews v.
                              III                                  A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000) (internal
                                                                   citation and quotation marks omitted)).
  On appeal, Plaintiff challenges the district court’s dismissal
of his claims involving non-selections for the positions of        A. Count 15: The Contract Manager Position
(1) Contract Manager, (2) Project Manager, Safety, and (3)
Methods Team Specialist (Plant Operations). The district             On appeal, there is no dispute that Plaintiff was a member
court dismissed these claims, finding that Plaintiff failed to     of a protected class (African American), that he applied for
establish a prima facie case of racial discrimination regarding    the Contract Manager position, that he did not get an
any of the non-selections.                                         interview or an offer, and that the job went to a white person
                                                                   instead. However, the district court found that Plaintiff had
  To avoid a grant of summary judgment on a Title VII              failed to establish that he was qualified for the position. The
claim, a plaintiff must either provide direct evidence of          job posting set forth the following minimum requirements for
discrimination or establish a prima facie case, which creates      the Contract Manager position:
an inference of discrimination based on circumstantial
evidence. Talley v. Bravo Pitino Rest., Ltd., 61 F.3d 1241,            Ability to provide leadership, to coach people toward
1248 (6th Cir. 1995) (citations omitted). A prima facie case           accomplishment of group objectives. To manage change
requires a plaintiff to show (1) that he is a member of a              occurring in a rapidly changing environment. Work
protected class; (2) that he applied for, and did not receive, a       independently with minimal or no supervision.
job; (3) that he was qualified for the job; and (4) that a             Extensive background in areas of supply chain mgt &
similarly-situated person who was not in the plaintiff’s               skills in negotiation. Oral & written communication.
protected class received the job. Thurman v. Yellow Freight            Process improvement & financial analysis. B.S. degree
Sys., Inc., 90 F.3d 1160, 1166 (6th Cir. 1996); see also Tex.          in business administration, or related field, or equivalent
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54 &              experience in an industrial environment, including
n.6 (1981) (quoting McDonnell Douglas Corp. v. Green, 411              managerial experience. Knowledge of supply chain
U.S. 792, 802 (1973)).                                                 principles & practices, TVA business policies, laws,
                                                                       regulations, executive orders, & fed guidelines governing
   Once the plaintiff establishes a prima facie case, the burden       TVA’s contracting.
shifts to the defendant to offer a legitimate, nondiscriminatory
reason for the adverse employment action at issue. Burdine,        (J.A. at 1388.) The main point of contention between the
450 U.S. at 253 (citing McDonnell Douglas, 411 U.S. at 802).       parties is the requirement of “[e]xtensive background in areas
If the defendant satisfies that burden, then the burden of         of supply chain [management and] skills in negotiation, oral
No. 01-5953 Seay v. Tennessee Valley Authority et al.          9    10 Seay v. Tennessee Valley Authority et al. No. 01-5953

[and] written communication.” TVA also notes that John                Moreover, the record demonstrates that the successful
Opp, the selecting manager for this position, submitted a           candidate, Roy Jones, possessed the requisite work experience
sworn statement that his “interviews were directed to those         through his position as a purchasing agent at TVA and met
people with the most procurement-related experience that had        the other minimum criteria. Therefore, we are not persuaded
been a purchasing agent or contract manager with relevant           that Plaintiff established his prima facie case for his non-
prior experience.” (J.A. at 250). TVA argues that Plaintiff’s       selection claim regarding the Contract Manager position.
application and resume did not demonstrate any experience in
procurement or supply chain management. TVA also argues             B. Count 75: The Project Manager, Safety Position
that Plaintiff’s own deposition testimony, in which he stated
that he had never been a purchasing agent or contract manager         Next, Plaintiff challenges the dismissal of his non-selection
while employed at TVA and had never worked under Opp’s              claim for a Project Manager, Safety Position in the Training
supervision, refutes his present contention that he met the         and Safety department. The district court, in granting
criteria. Plaintiff contests this by pointing to his application,   summary judgment to TVA on this claim, determined that
which included a statement from his immediate supervisor            Plaintiff failed to establish a prima facie case of
about his then-current job responsibilities:                        discrimination with respect to this claim because he was not
                                                                    qualified for the position for which he applied. The minimum
  Coordinated the daily order and distribution processing,          qualifications listed in the job posting were:
  tracking, and security of the audiovisual library.
  Planned, coordinated, and implemented procurement of                Bachelors degree in industrial safety or equivalent
  new audiovisuals with the year budget. Upgraded the                 experience and six (6) years of comprehensive loss
  technical quality of audiovisuals to state-of-the-art               control experience in power plant operations and
  through procurement practices or replacement                        maintenance safety/security process integration. Strong
  agreements with production companies.                               communication and analytical skills. Must have
                                                                      successfully demonstrated the defined competencies of
(J.A. at 1395 (emphasis added).) Although this statement              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 ,
supports some background in procurement activities, Plaintiff         flexibility/adaptability, initiative/independence,
has not come forward with any evidence that he has had any            creativity/innovation, customer focus continuous
supply chain management experience. The closest possibility           improvement, technical knowledge, leadership, and
on his resume was his job as a Material Control Storekeeper           organization and planning.
in the Army from 1969 to 1970. Plaintiff described his work
in this position as “Responsible for inventory for all stores on    (J.A. at 1413.) Plaintiff applied for the position but was
plant site.” (J.A. at 1393.) This description is vague and          neither selected nor granted an interview. Kenneth S.
makes no mention of negotiation. Although Plaintiff’s               McVay, Industrial Safety Manager of Programs for the Fossil
deposition testimony shed more light on what “[r]esponsible         Power Group, testified at his deposition that because he
for inventory” meant, Opp had only the descriptions on              received over forty applications for the Project Manager,
Plaintiff’s application and resume at his disposal, and it was      Safety position, he decided to interview only those applicants
not Opp’s responsibility to discern all of Plaintiff’s work         with supervisory or managerial experience, which Plaintiff
experience from the brief descriptions on his application and       apparently lacked. McVay also testified that Plaintiff lacked
resume.
No. 01-5953 Seay v. Tennessee Valley Authority et al. 11           12 Seay v. Tennessee Valley Authority et al. No. 01-5953

the necessary six years of loss-control experience in a power      employer used in selecting applicants for the posted job. See
plant.                                                             Wilburn v. Dial Corp., 724 F. Supp. 521, 528-29 (W.D. Tenn.
                                                                   1989) (denying summary judgment where a black female
  At issue on appeal are the third and fourth prongs of the        plaintiff was refused a promotion because she lacked the
prima facie test, as well as TVA’s asserted legitimate             requisite managerial experience, but the white male who
explanation for not selecting Plaintiff. Specifically, the         received the promotion lacked the educational requirement);
parties dispute the following: (1) whether Plaintiff possessed     1 LEX K. LARSON, EMPLOYMENT DISCRIMINATION § 8.02[3],
the minimum qualifications (specifically, six years of loss        at 8-29 (2d ed. 2003) (“A court may be inclined not to take
control experience in power plant operations); (2) whether the     the employer’s stated qualifications seriously when in fact the
selectees possessed the minimum qualifications; (3) whether        employer does not consistently adhere to those stated
Plaintiff and the selectees were “similarly-situated,” and         qualifications when making employment decisions.”). When
(4) whether TVA’s decision to interview only those                 neither the plaintiff nor the selectee meets all the stated
applicants with management experience constituted a                criteria, the qualified prong is satisfied for summary judgment
legitimate nondiscriminatory reason for Plaintiff’s non-           purposes, because a genuine issue of material fact arises as to
selection.                                                         whether the posted standards actually dictated whether
                                                                   Plaintiff was qualified.2
  As to the third prong (i.e., Plaintiff’s qualifications),
McVay’s testimony appears to have conceded that Plaintiff            Here, Plaintiff points to two of the five selectees, Henry
had “six years of various levels of safety experience.” (J.A.      Ziegler and Charles Proffitt, and argues that they did not meet
at 1303.) However, the posted criteria for the position            the posted qualifications for the position either. Plaintiff
required the loss control experience to be obtained in power       observes that Ziegler did not possess a bachelor’s degree in
plant operations. A review of Plaintiff’s resume and               industrial safety, which is listed among the posted minimum
application does not reveal any references to “power plant” or     requirements, whereas Plaintiff did possess such a degree.
any sort of plant. Therefore, Plaintiff has not established that   Ziegler instead possessed a bachelor’s degree in industrial
he was qualified for the job based on TVA’s posted                 engineering. Plaintiff also notes that Proffitt possessed no
qualifications.                                                    college degree at all, but only a high school education. He
                                                                   further argues that Proffitt lacked the six years of health and
   This does not end the inquiry, however, because although        safety experience because he was only an electrician. TVA
posted minimum requirements often dictate which applicants         counters that Ziegler’s industrial engineering degree
are qualified and which are not, this does not always hold         constituted an equivalent degree, and that although Proffitt
true. As the Supreme Court has repeatedly emphasized, “the         did not have a college degree and was a trained electrician, he
precise requirements of a prima facie case can vary depending      possessed equivalent experience because, in addition to his
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.              2
                                                                         Of course, an emplo yment discrimination p laintiff does not
Waters, 438 U.S. 567, 577 (1978)). Thus, where a selectee          autom atically survive summ ary jud gment whenever the better-treated
does not appear to meet the posted qualifications, a genuine       employee fails to possess all stated qualifications. For instance, if neither
issue of material fact may exist as to whether the posted          cand idate meets all stated criteria, but it is apparent from the record that
minimum requirements actually dictated the criteria the            the selectee is obviously better qualified than the plaintiff, then summary
                                                                   judgment would be appropriate.
No. 01-5953 Seay v. Tennessee Valley Authority et al. 13          14 Seay v. Tennessee Valley Authority et al. No. 01-5953

electrician position, he was a Health and Safety Manager at       had any loss control experience prior to 1992, McVay replied,
TVA’s Gallatin Steam Plant for the twelve years just prior to     “I can’t do that.” (J.A. at 1323.) After 1992, Plaintiff points
his selection, i.e., from 1985 to 1997.                           out, and TVA does not disagree, that Proffitt was officially
                                                                  employed as a Maintenance Electrician. McVay’s testimony
   We are not persuaded by TVA’s arguments. Based on the          creates two problems. First, it tends to contradict TVA’s
minimum qualifications posted in the job announcement,            representation that Proffitt possessed twelve (or even six)
Ziegler was required either to hold a bachelor’s degree in        years of health and safety experience prior to receiving the
industrial safety or to possess equivalent experience. TVA        Project Manager, Safety position in 1997. Second, if Proffitt
argues that Ziegler possessed an equivalent degree, but that      did not begin to acquire health and safety experience until
is not what TVA’s posted minimum qualifications stated.           1992, then it would have been impossible for him to have
Even if the language of the posting could (or should) be          completed six years of loss control experience by the time he
interpreted in such a manner, it is unclear on this record that   received the position in 1997.
a degree in industrial engineering is equivalent to a degree in
industrial safety. This seems to be particularly critical here,     The record does not support TVA’s contention that Proffitt
where the position is for a manager in safety, not engineering.   and Ziegler met the minimum qualifications for the Project
                                                                  Manager, Safety position as advertised in the job posting.
  Moreover, it is unclear from the record that Proffitt           Thus, a genuine issue of material fact remains as to whether
possessed twelve years of health and safety experience. All       those posted qualifications served as the actual guidelines by
of the early experience listed on his resume relates to           which applicants’ qualifications were determined. Therefore,
electrician work. The first mention of health and safety is on    Plaintiff has satisfied the third prong of his prima facie case,
page two of the resume, under “September 1985-Present,”           for purposes of summary judgment.
where it states that Proffitt maintained dual roles as a
maintenance electrician and acting manager of health and            As to the fourth prong, it is not apparent from the record
safety. However, under this entry the resume lists no health      that selectees Proffitt and Ziegler were better qualified than
and safety-related experience. Instead it lists the following:    Plaintiff for the Project Manager, Safety position. The record
“Maintained all plant electrical equipment”; “Maintained          does not support TVA’s representations that these two
161KV switchyard & transformer yard”; and “Maintained all         selectees possessed the requisite degree or the equivalent
yard operations electrical equipment.” (J.A. at 1021.) Page       experience, or that Proffitt possessed six years of loss control
four of the resume states, among other things, “Experience:       experience, the lack of which supposedly doomed Plaintiff’s
Health and Safety Manager,” and lists some accompanying           application. In other words, Proffitt and Ziegler were
responsibilities. (J.A. at 1023.) However, this listing           similarly-situated to Plaintiff in that they possessed
includes no dates to indicate at what point Proffitt served as    qualifications that, based on the record, appear to be equal to
a health and safety manager. And while the resume lists a         or less than Plaintiff’s qualifications. Therefore, we find that
number of teams, it does not indicate how long Proffitt served    Plaintiff has satisfied the fourth prong of his prima facie case.
on any of those teams for purposes of determining whether he
had six years of health and safety experience.                      Because Plaintiff has met his prima facie burden for
                                                                  purposes of summary judgment, we now consider TVA’s
   McVay’s deposition testimony has further confused the          argument that it possessed a legitimate nondiscriminatory
issue. When asked to point on the resume to where Proffitt        reason for not hiring Plaintiff. Specifically, TVA argues that
No. 01-5953 Seay v. Tennessee Valley Authority et al. 15           16 Seay v. Tennessee Valley Authority et al. No. 01-5953

McVay’s decision to reduce the applicant pool by considering       tolling principles. We agree with Plaintiff and therefore
only the applicants with management experience (a                  reverse the district court’s dismissal of this claim.
qualification not listed among the stated criteria in the job
posting) constituted a legitimate nondiscriminatory reason for        The facts demonstrate that on November 22, 1997 Plaintiff
Plaintiff’s non-selection. However, we are not persuaded. As       filed an EEO complaint regarding his non-selection for this
discussed earlier, when an employer presents a legitimate          position. On December 9, 1997, TVA’s EOC organization
nondiscriminatory reason for an adverse employment action,         issued a final agency decision (FAD), dismissing Plaintiff’s
the employee must demonstrate that a genuine issue of              EEO complaint on the grounds that the Methods Team
material fact exists as to whether the asserted reason is a        Specialist position had not been filled. Plaintiff received the
pretext for discrimination. Burdine, 450 U.S. at 253.              FAD, which was sent via certified mail, on December 19,
                                                                   1997, but he did not file a claim regarding this non-selection
   In the instant case, TVA’s proffered legitimate explanation     in federal court until November 17, 1999.
is insufficient to explain Plaintiff’s non-selection. Hopson,
306 F.3d at 434. If McVay had been seeking a way to reduce           In the course of preparing a pre-complaint counseling
his applicant pool, it appears that the obvious first step would   report (“PCCR”), Lynn Talley, Manager of Counseling and
have been to eliminate those applicants who did not meet the       Analysis in TVA’s EOC organization, asked TVA’s human
stated qualifications before using unstated qualifications to      resources department about the status of the job vacancy. The
further eliminate applicants. Yet, selectees Ziegler and           human resources department responded by letter dated
Proffitt remained in the applicant pool, despite the fact that     December 5, 1997, stating the following:
neither met the stated criteria and despite McVay’s ostensible
need to reduce his large applicant pool. This inconsistency          Management made a decision not to fill the PG-8
tends to undermine TVA’s legitimate nondiscriminatory                position but to utilize the headcount and budget to further
explanation and raises “an inference [of pretext] that must be       develop a current employee in preparation for a site
drawn, at summary judgment, in favor of the nonmovant.”              position. Mr. Albert J. Salatka was rotated into this
Wexler v. White’s Furniture, Inc., 317 F.3d 564, 577-78 (6th         position at the PG-5 level for the purpose of
Cir. 2003) (en banc). Therefore, we reverse the district             development. Once this developmental process is
court’s grant of summary judgment in favor of TVA on Count           complete, Mr. Salatka will no longer occupy the
75 and remand the claim for a trial.                                 headcount in the Process Methods organization.
                                                                     Management will then make a decision as to whether or
C. Count 67: The Methods Team Specialist (Plant                      not to fill the PG-8 position.
   Operations) Position
                                                                     As indicated above, the position . . . has not been filled;
  Next, Plaintiff challenges the dismissal of his claim              therefore, no selection has been made. If the position is
concerning his non-selection for the Methods Team Specialist         to be filled in the future, it will be re-posted and the
(Plant Operations) position. In dismissing the claim, the            selection process completed.
district court concluded that the claim was time-barred and
that equitable tolling did not apply. Plaintiff acknowledges       (J.A. at 737.) The FAD indicated that “no one was selected
on appeal that he filed suit late on this claim, but he contends   for this position,” that applications . . . were never reviewed
that he was entitled to maintain the suit based on equitable       nor any qualifications of candidates ever compared,” and that
No. 01-5953 Seay v. Tennessee Valley Authority et al. 17              18 Seay v. Tennessee Valley Authority et al. No. 01-5953

Plaintiff’s allegation of discrimination was therefore                   Because the parties dispute some of the facts, we review the
“premature.” (J.A. at 201.) Although the FAD mentioned the            district court’s denial for an abuse of discretion. Id. We
December 5, 1997 letter from TVA’s human resources                    consider five factors in determining whether equitable tolling
department, it did not mention the letter’s explanation to the        should be allowed: “1) lack of notice of the filing
effect that Salatka had been rotated into the position for            requirement; 2) lack of constructive knowledge of the filing
“developmental” purposes.                                             requirement; 3) diligence in pursuing one’s rights; 4) absence
                                                                      of prejudice to the defendant; and 5) the plaintiff’s
  Plaintiff argues that he was entitled to equitable tolling          reasonableness [in] remaining ignorant of the particular legal
because TVA purposely withheld the critical information that          requirement.” Truitt v. County of Wayne, 148 F.3d 644, 648
Salatka, a white man, had been “given” the job, and that had          (6th Cir. 1998) (citing Andrews v. Orr, 851 F.2d 146, 151
Plaintiff known this information he would have filed a lawsuit        (6th Cir. 1988)). Regarding the third factor, a plaintiff must
with regard to that non-selection in a timely fashion. TVA            demonstrate facts showing his or her diligence in pursuing the
insists that it did not mislead Plaintiff because the job position    claim. See Morgan v. Washington Mfg. Co., 660 F.2d 710,
had not been filled, and that the decision to rotate Salatka into     712 (6th Cir. 1981). However, these factors are not exclusive
the position was in the December 5, 1997 letter, of which the         bases upon which to apply equitable tolling; thus, the decision
FAD made Plaintiff aware. Thus, TVA argues, Plaintiff                 to equitably toll the limitations period is made on a case-by-
failed to discover that Salatka was carrying out the duties of        base basis. Truitt, 148 F.3d at 648. A district court need not
the position because of his own lack of due diligence. The            find that the employer willfully engaged in wrongful conduct
district court agreed with TVA’s interpretation of the facts          to allow equitable tolling. See Andrews, 851 F.2d at 151.
and declined to apply equitable tolling.                              Nevertheless, the doctrine of equitable tolling is restricted and
                                                                      to be carefully applied. Id. (citations omitted).
   A Title VII plaintiff ordinarily must file a civil action
within ninety days of receiving a notice of dismissal and right         We find that the district court did abuse its discretion in
to sue from the Equal Employment Opportunity Commission               declining to extend equitable tolling to Plaintiff. In this case,
(EEOC). See 42 U.S.C. § 2000e-5(f)(1). However, because               the FAD informed Plaintiff that no one received the job and
this requirement is not jurisdictional, a court may apply             no applications were reviewed, but it omitted the additional
equitable tolling, which “‘permits a plaintiff to avoid the bar       information that Salatka was performing the job duties for
of the statute of limitations if despite all due diligence he is      “developmental” purposes. This was the critical information
unable to obtain vital information bearing on the existence of        Plaintiff needed to raise his suspicions about TVA’s possible
his claim.’” EEOC v. Ky. State Police Dep’t, 80 F.3d 1086,            racially discriminatory motive in rejecting him. Although the
1095 (6th Cir. 1996) (quoting Cada v. Baxter Healthcare               FAD referenced the December 5, 1997 letter that mentioned
Corp., 920 F.2d 446, 451 (7th Cir. 1990)). We review a                Salatka’s selection, the reality remains that the explanation in
district court’s decision to grant or deny equitable tolling de       the FAD was misleading. It implied that nobody took on the
novo when the facts are undisputed or the district court rules,       job responsibilities, when in fact TVA placed Salatka in the
as a matter of law, that equitable tolling is not available; in all   position, albeit at his current PG-5, rather than PG-8, level.
other circumstances we review for an abuse of discretion.             Plaintiff, in reliance, did not pursue his EEO complaint for
Amini v. Oberlin Coll., 259 F.3d 493, 498 (6th Cir. 2001)             this non-selection. Because the explanation in the FAD
(quoting Dunlap v. United States, 250 F.3d 1001, 1007 n.2             misrepresented the circumstances surrounding the non-
(6th Cir. 2001)).                                                     selection, Plaintiff did not need to request a copy of the
No. 01-5953 Seay v. Tennessee Valley Authority et al. 19             20 Seay v. Tennessee Valley Authority et al. No. 01-5953

December 5, 1997 letter to be reasonably diligent. We                1201.154(b)(2) or may file a civil action as specified at
therefore hold that equitable tolling should have been granted       § 1614.310(g), but not both.” Id. § 1614.302(d)(1)(i); see
and that the district court abused its discretion in holding         also 5 U.S.C. § 7702(a)(2) (noting that an agency decision on
otherwise. Because neither of the parties discuss the                a “mixed case” complaint “shall be a judicially reviewable
underlying merits of this non-selection claim on appeal, we          action unless the employee appeals the matter to the
remand Count 67 to the district court for further consideration      [MSPB]”). It is not disputed that Plaintiff had a “mixed
of the claim’s merits.                                               case,” that he filed a “mixed case” complaint through TVA’s
                                                                     EEO process, that a FAD was not issued within 120 days, and
                               IV                                    that Plaintiff thereafter filed a civil action in the district court.
  Plaintiff also challenges his RIF, asserting various theories        TVA argues on appeal that after TVA failed to issue the
under which the RIF was wrongful. We address each of his             FAD within 120 days, Plaintiff was required to appeal the
claims in connection with the RIF below.                             action to the MSPB and develop an administrative record for
                                                                     the district court to review. TVA’s argument is two-fold.
A. Exhaustion of Administrative Remedies                             First, it notes that Plaintiff, subsequent to filing his civil
                                                                     action, abandoned his claims of discrimination regarding the
   Before addressing the merits of these claims, however, we         RIF. TVA argues that once Plaintiff abandoned the
turn our attention to the district court’s dismissal of Counts       discrimination claims, his “mixed case” complaint ceased and
126, 127, and 131 on procedural grounds. In so dismissing,           the district court lost jurisdiction over the nondiscrimination
the district court stated that Plaintiff had failed to exhaust his   claims. For this argument TVA relies on the following text
administrative remedies. On appeal, Plaintiff argues that he         from Noble v. Tennessee Valley Authority, 892 F.2d 1013
did comply with the administrative provisions for “mixed             (Fed. Cir. 1989) (en banc):
case” complaints by waiting the requisite period of time after
filing an EEO complaint before initiating a civil action in the        In this court, Noble has abandoned his discrimination
district court.                                                        claims, instead basing his petition solely on the failure of
                                                                       the MSPB to require the TVA to honor his
   We agree with Plaintiff. A “mixed case” complaint “is a             reemployment rights under the [Veterans Preference
complaint of employment discrimination filed with a federal            Act]. Accordingly, this is no longer a “mixed” case and
agency based on race, color, religion, sex, national origin, age       jurisdiction over this matter lies, if at all, in this court.
or handicap related to or stemming from an action that can be
appealed to the Merit Systems Protection Board (MSPB).”              Id. at 1014. TVA asserts that Plaintiff instead should have
29 C.F.R. § 1614.302(a)(1). A “mixed case” complaint may             brought his nondiscrimination claims regarding his RIF to the
be filed with the employer-agency’s EEO process (pursuant            MSPB and then sought judicial review, if necessary, with the
to 29 C.F.R. § 1614.302) or with the MSPB (pursuant to               Federal Circuit, where exclusive jurisdiction ostensibly lies in
5 C.F.R. § 1201.151), but not with both. Id. § 1614.302(b).          this situation.
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             TVA is mistaken. Noble does not stand for the proposition
date of filing, “the complainant may appeal the matter to the        that jurisdiction lies only in the Federal Circuit when a
MSPB at any time thereafter as specified at 5 C.F.R.                 “mixed case” complaint already brought into a federal district
No. 01-5953 Seay v. Tennessee Valley Authority et al. 21             22 Seay v. Tennessee Valley Authority et al. No. 01-5953

court later abandons its discrimination component. Rather,           jurisdiction by virtue of the discrimination claim’s subsequent
the quoted excerpt from Noble was referring to the fact that         elimination. Afifi v. United States Dep’t of Interior, 924 F.2d
the Federal Circuit lacks jurisdiction to consider “mixed case”      61, 63-64 (4th Cir. 1991).
complaints. See id. at 1014; see also Williams v. Dep’t of
Army, 715 F.2d 1485, 1487 (Fed. Cir. 1983) (en banc). Thus,             Unlike Afifi, this case presents no opportunity for a transfer
the Noble court was essentially insuring that it had                 to the Federal Circuit, because it originated from the EEO
jurisdiction over the appeal before it. And while it is true that    process, not the MSPB. However, the reasoning is directly on
the Federal Circuit has exclusive jurisdiction over appeals          point: A plaintiff ordinarily should not be punished (by way
from the MSPB’s final decisions as to non-“mixed case”               of dismissal) for events unforeseen at the time the case was
complaints, 28 U.S.C. § 1295(a)(9), the present action was           filed. Moreover, at no time has either party or the district
not appealed from the MSPB; it was appealed from the EEO             court suggested that the discrimination claim Plaintiff
process. Thus, Noble does not control the issue at hand.             voluntarily dismissed was a sham or frivolous. Id. at 64.

  A review of 29 C.F.R. § 1614.302(a)(1) and (d)(1)(i)                 TVA also argues that even if subject matter jurisdiction
establishes that a plaintiff may properly bring a “mixed case”       existed, Plaintiff waived his rights to pursue Counts 126, 127,
complaint through an employer-agency’s EEO process, and              and 131 because he voluntarily abandoned the discrimination
then, if the agency takes no action within 120 days, bring the       components of these claims and consequently failed to
“mixed case” complaint to the district court. The language of        develop an administrative record at the MSPB. TVA’s
these regulations indicates nothing to the contrary.                 rationale is that while Title VII claims are reviewed by the
                                                                     district court de novo, procedural claims are reviewable only
   Our view is bolstered by cases from other circuits that have      on the record, pursuant to 5 U.S.C. § 7703(c), the statute
considered what happens when a “mixed case” complaint,               controlling MSPB procedure.
properly appealed to the district court from the MSPB,
subsequently loses its discrimination component. The D.C.               We disagree. On-the-record review is required for
Circuit declined to hold that the subsequent dismissal of the        nondiscrimination claims only if the “mixed case” complaint
discrimination portion of a “mixed case” complaint vitiated          is appealed from the MSPB. In contrast, a “mixed case”
the district court’s subject matter jurisdiction, reasoning that     complaint from an agency’s EEO process, on judicial review
jurisdiction properly existed at the time the “mixed case”           at a district court, is reviewed de novo. This can be found
complaint was filed with the district court and that no              right in the statutory language regarding appeals: “Nothing
statutory authority exists “suggest[ing] that the jurisdiction       in this section shall be construed to affect the right to trial de
thereby conferred on the district court dissolves upon               novo under any provision of law described in subsection
dismissal of one claim where original jurisdiction otherwise         (a)(1) of this section after a judicially reviewable action,
properly exists.” Evono v. Reno, 216 F.3d 1105, 1109 (D.C.           including the decision of an agency under subsection (a)(2)
Cir. 2000). In considering similar procedural facts, the Fourth      of this section.” 5 U.S.C. § 7702(e)(3) (emphasis added).
Circuit held that a nondiscrimination claim should not be            Subsection (a)(2) refers to “any matter before an agency
dismissed under these circumstances, so long as the                  which involves (A) any action described in paragraph (1)(A)
discrimination claim was not a “sham or frivolous,” and that         of this subsection [i.e., an action which the employee or
the district court had the discretion either to retain the case or   applicant may appeal to the MSPB]; and (B) any issue of
to transfer it to the Federal Circuit, which had attained            discrimination prohibited under any provision of law
No. 01-5953 Seay v. Tennessee Valley Authority et al. 23                         24 Seay v. Tennessee Valley Authority et al. No. 01-5953

described in paragraph (1)(B) of this subsection.” 5 U.S.C.                      required to develop an administrative record with respect to
§ 7702(a)(2). In other words, subsection (a)(2) refers to any                    his nondiscrimination claims because claims, when appealed
cause of action encompassing an MSPB claim and a                                 from an agency’s EEO process, are reviewed de novo.
discrimination claim. It refers to a mixed claim. If a district                  Consequently, Plaintiff did not waive any right to have his
court may analyze the MSPB issues de novo when a “mixed                          nondiscrimination claim heard by the district court, and the
case” complaint is appealed from an agency’s EEO process,                        district court erred in ruling otherwise. We therefore will
the subsequent abandonment of the discrimination claim in                        address the merits of those decisions now.
the district court cannot make the necessity for an
administrative record suddenly appear. TVA cannot point to                       B. Count 123--Violation of TVA’s Hiring and Retention
any statutory authority to indicate that a plaintiff is to be                       Policy for Disabled Veterans
disadvantaged in retrospect for abandoning a claim after
initially pursuing the claim in district court, or that                            Plaintiff argues that the district court erred in dismissing his
nondiscrimination claims must always be reviewed on an                           challenge to enforce TVA’s hiring and retention policy for
administrative record.3                                                          disabled veterans. The policy reads as follows:

  Thus, we hold that subject matter jurisdiction exists over                       The Tennessee Valley Authority (TVA) has an up-to-
these nondiscrimination claims. Moreover, Plaintiff was not                        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),
    3                                                                              included as part of TVA’s affirmative action obligations
      TVA relies principally on two cases for the proposition that
nondiscrimination claims m ust always be reviewed on an administrative             for the disabled under Section 501(b) of the
record. The first is Johnson v. Burnley, 887 F.2d 4 71, 474 n.1 (4th Cir.          Rehabilitation Act of 1973.
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
                                                                                   TVA is committed to ensuring affirmative action for the
reviewed on the record.” (citations omitted) Ho wever, Johnson was                 employment and advancement of qualified disabled
speaking of judicial review in the co ntext of a case appealed from the            veterans, especially those veterans who are rated at 30
MSPB. In the present case, P laintiff is appealing from TV A’s EEO                 percent or more disabled. No individual may be denied
process.                                                                           employment, developmental opportunities, or
     TVA also cites Mason v. Frank, 32 F.3d 315 (8th Cir. 1994). At the
                                                                                   advancement, nor may disciplinary action be taken
district court the Mason plaintiff succ essfully ob jected to the entry of the     against him/her solely because of physical or mental
MSPB into the re cord beca use he was pursuing his discrimination claim            disability.
only and the M SPB record was therefore irrelevant. Id. at 31 8. The
Eighth Circuit held that Plaintiff could not subsequently reassert the             This commitment to employ, retain, and advance
nondiscrimination claim after having prevented the MSPB record from                qualified disabled veterans shall apply to all supervisors,
being entered at the district co urt. Id. Mason is distinguishable on two
bases. First, the Mason plaintiff, like the Johnson plaintiff, appealed his
                                                                                   managers, and other officials in a position to influence
“mixed case” complaint to the district court from the MSPB . Second, the           personnel policies/practices.
court’s reasoning was based on principles of estoppel, not any statutory
authority requiring an administrative record . Thus, Mason is inapp osite
as well.
No. 01-5953 Seay v. Tennessee Valley Authority et al. 25           26 Seay v. Tennessee Valley Authority et al. No. 01-5953

(J.A. at 426.) The district court held that no private cause of    does not require an affirmative action policy for disabled
action existed for Plaintiff to enforce a corporately-adopted      veterans. Section 501 of the Act requires each federal agency
plan. Plaintiff argues on appeal that because TVA’s policy is      to submit “an affirmative action program plan for the hiring,
federally mandated, a private cause of action exists to enforce    placement, and advancement of individuals with disabilities
the affirmative action benefits contained therein. Specifically,   in such department, agency, instrumentality, or Institution.”
Plaintiff points to § 501(b) of the Rehabilitation Act of 1973,    29 U.S.C. § 791(b). To this end, § 501 provides a private
29 U.S.C. § 791(b), which requires federal employers to adopt      remedy for individuals who encounter discrimination on the
an affirmative action policy for the hiring, placement, and        basis of disability. Mahon v. Crowell, 295 F.3d 585, 589 n.2
advancement of disabled individuals, and § 403(c) of the           (6th Cir. 2002). However, we do not read the Rehabilitation
Vietnam Era Veterans’ Readjustment Assistance Act                  Act as extending its private remedy to the rights contained in
(VEVRA), 38 U.S.C. § 4214(c), which requires employers             VEVRA. The only nexus between the Rehabilitation Act and
who enter into certain contracts with the United States to         VEVRA is that VEVRA requires a “separate specification”
adopt “a separate specification of plans . . . to promote and      for disabled veterans to be included in the Rehabilitation Act-
carry out such affirmative action with respect to disabled         required affirmative action policy for disabled individuals.
veterans in order to achieve the purpose of this section.”         The fact that VEVRA references the Rehabilitation Act for
                                                                   this purpose does not mean it implicitly incorporates all rights
  As an initial matter, it is not entirely clear whether this      contained in the Rehabilitation Act into VEVRA. See Antol
policy to which Plaintiff points is federally mandated.            v. Perry, 82 F.3d 1291, 1297 (3d Cir. 1996) (rejecting the
Although the parties agree that TVA is subject to § 501 of the     plaintiff’s argument that Congress’ amendment of the
Rehabilitation Act and § 403 of VEVRA, TVA maintains that          Rehabilitation Act to waive sovereign immunity and include
the policy is voluntary and that there exists a “separate          a private remedy for aggrieved disabled individuals meant
specification” under its Rehabilitation Act-mandated policy.       that § 403 of VEVRA was also implicitly amended, and
However, TVA fails to point to anything in the record that         reasoning that it could not “enlarge the waiver [of sovereign
would constitute the “separate specification” that VEVRA           immunity] in the Rehabilitation Act ‘beyond what the
requires. At any rate, we need not decide this issue because       language of the statute requires’”) (quoting United States v.
even if this policy is the VEVRA-required “separate                Idaho ex rel. Dir., Idaho Dep’t of Water Res., 508 U.S. 1, 7
specification,” no private remedy exists. We have already          (1993)). Therefore, no private remedy exists for Plaintiff on
held that VEVRA does not extend a private cause of action to       this issue.4
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                 4
                                                                        TVA also suggests that an action upon any o ther basis (other than
predecessor to 38 U.S.C. § 4212(b)).                               VEVRA or the R ehab ilitation Act) is preemp ted by the Civil Service
                                                                   Reform Act of 197 8, Pub. L. No. 95-4 54, 9 2 Stat. 111 1 (co dified in
  Plaintiff contends alternatively that the Rehabilitation Act     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,
provides a private remedy. However, the Rehabilitation Act         we need not reach this issue.
No. 01-5953 Seay v. Tennessee Valley Authority et al. 27            28 Seay v. Tennessee Valley Authority et al. No. 01-5953

C. Count 125: Violation of Supplementary Agreement                  the available SD-3 positions or reemployment to those
   10 to the Collective Bargaining Agreement                        positions after his termination.
   Next, Plaintiff challenges the district court’s dismissal of        Because Plaintiff did not follow the grievance procedure for
Count 125 of his amended complaint, which alleged that TVA          alleged contractual violations, the district court dismissed this
violated his reemployment RIF rights under its own policy for       claim for failure to exhaust administrative remedies. TVA
displaced policy veterans, namely, a document known as              asserts the district court’s reasoning on appeal. Plaintiff
“Supplementary Agreement 10,” which is part of the                  argues that he was not required to follow the grievance
collective bargaining agreement between TVA and the union           procedure because TVA had adopted Supplementary
representing TVA’s employees. Specifically, Supplementary           Agreement 10 as its corporate policy, and therefore the
Agreement 10 “governs the elimination of positions and              collective bargaining agreement grievance procedures did not
termination of employees through a [RIF].” (J.A. at 392, 394-       apply. However, the record reflects no evidence that TVA
404.) It provides to “RIF’d” employees an opportunity to be         adopted Supplementary Agreement 10 as its corporate policy,
placed on a reemployment list for up to two years following         and we will not make this finding now.
termination “for jobs for which the employee indicates
interest and availability at the time of separation and which         Plaintiff argues alternatively that Supplementary
are in the same classes as jobs he/she has held in TVA.” (J.A.      Agreement 11 of the collective bargaining agreement allows
at 397.) The Supplementary Agreement also includes a                claimants to bypass the grievance procedure. Supplementary
veterans’ preference in rehiring.                                   Agreement 11 provides that “[i]f an appeal or formal
                                                                    complaint with respect to an action, matter, or proposed
   It does not appear to be disputed that Plaintiff received his    action is or has been filed under a separate procedure
veterans’ preference regarding the RIF; i.e., among the             provided by law or Federal regulations, a grievance regarding
employees in his work group, he was the last to be subjected        such action, matter, or proposed action will not be considered
to the RIF, but because the entire department was eliminated,       or, if in progress, will not be further considered or decided
he, as well as his coworkers, was RIF’d. Plaintiff contends,        under this agreement.” (J.A. at 403-04.) Plaintiff argues that
however, that TVA did not follow Supplementary Agreement            because he placed his grievance about Supplementary
10 with respect to rehiring preferences. Plaintiff notes that his   Agreement 10 in his “mixed case” complaint filed through
colleague Ronald Stamps, another Safety Specialist in the           TVA’s EEO process, he could not simultaneously pursue the
Labor and Safety department who was terminated at the same          complaint through the collective bargaining agreement
time as Plaintiff, subsequently received a position that            grievance process. We agree with Plaintiff that he pursued a
became available. Plaintiff contends that Stamps’ rehire            legitimate alternative route, based on the language in
contravened Supplementary Agreement 10, which required              Supplementary Agreement 11.
TVA to offer the job to Plaintiff first. Plaintiff also contends
that pursuant to Supplementary Agreement 10, he should                1.   Reemployment Rights
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         Turning our attention to the merits, Plaintiff’s claim to
his RIF, and he had previously been employed in the SD-3            reemployment rights fails. The reemployment list policy
classification. Plaintiff claims TVA violated Supplementary         enables a RIF’d employee to have his or her name placed on
Agreement 10 by failing to offer him a reassignment to any of       the list for two years “for jobs for which the employee
No. 01-5953 Seay v. Tennessee Valley Authority et al. 29            30 Seay v. Tennessee Valley Authority et al. No. 01-5953

indicates interest and availability at the time of separation and   offers no explanation for the discrepancy, but presumably
which are in the same classes as jobs he/she has held in            Plaintiff (or one of his colleagues of comparable or greater
TVA.” (J.A. at 397.) Plaintiff completed an Interest and            preference) should have been offered the opportunity to be
Availability for Reemployment Following RIF form;                   reassigned to the lower level position, and this evidently did
however, he listed among the job classifications and grades         not happen. A good explanation for the discrepancy still
for which he wished to be considered only Safety Specialist,        might exist; however, we find that a genuine issue of material
SD-4 grade. Plaintiff did not indicate a desire to be               fact remains as to whether TVA provided to Plaintiff his
considered for any SD-3 positions. Therefore, Ronald                reassignment rights pursuant to Supplementary Agreement 10
Stamps, who indeed was RIF’d on the same day as Plaintiff           of TVA’s collective bargaining agreement. Therefore, we
and retained a lower preference than Plaintiff, received the        reverse the district court’s grant of summary judgment in
position at issue because the position for which he was             favor of TVA on this claim with respect to Plaintiff’s
rehired was of the SD-3 grade and Plaintiff did not request to      reassignment rights.
be considered for this type of job. Therefore, this claim lacks
merit.                                                              D. Count 126: Violation of Plaintiff’s Procedural RIF
                                                                       Rights
  2.   Reassignment Rights
                                                                       In Count 126, Plaintiff had asserted violations of three RIF
   However, there does appear to be a genuine issue of              rights: (1) veterans’ preference in retention of employees;
material fact regarding whether Plaintiff was afforded his          (2) “bumping and retreating” rights; and (3) reemployment
reassignment rights pursuant to the collective bargaining           rights.
agreement. Supplementary Agreement 10 provides that a
RIF’d employee with at least ten years of service “may                1.   Veterans’ Preference in Retention Rights
displace another employee in the same competitive area, but
in a different competitive level, by application of reduction in      Plaintiff appears to argue that TVA failed to exercise all
force procedures.” (J.A. at 397.) Thus, applicable RIF’d            means to retain Plaintiff in his Safety Specialist, SD-4
employees may be reassigned to any available lower-grade            position when implementing the RIF. However, it is not
position they have held on a non-temporary basis. Such              disputed that Plaintiff, as a disabled veteran, was placed at the
employees are placed on a retention register, which lists the       top of the list (i.e., he would be the last in his department to
grade levels for which each employee is eligible and states         be RIF’d). All of the employees in the Safety Specialist
whether positions in those grade levels are available.              department were RIF’d, and therefore Plaintiff is without a
                                                                    legitimate complaint in this regard.
   Among those listed in the Retention Register was Plaintiff,
who was designated “RR [Return Rights to] Safety Specialist,          2.   Bumping and Retreating Rights; Reemployment
SD-3 (No position available).” (J.A. at 1160.) The record                  Rights
indicates that Plaintiff had served in positions of the grade
levels SD-2, SD-3, SE-3, and SE-4. Deposition testimony               Plaintiff also argues that TVA failed to accord him all of
from Jimmy Raines, General Manager of Human Resources               his bumping, retreating, and reemployment rights, pursuant to
at TVA, acknowledged that at least one SD-3 position was            5 C.F.R. § 351.701:
available but was not listed on the retention register. TVA
No. 01-5953 Seay v. Tennessee Valley Authority et al. 31                        32 Seay v. Tennessee Valley Authority et al. No. 01-5953

  When a group I or II competitive service employee with                        competitive service by or under statute.” 5 U.S.C.
  a current annual performance rating of record of                              § 2102(a)(1)(A). The statute authorizing the TVA indicates
  minimally successful (Level 2) or equivalent, or higher,                      that “[t]he board shall without regard to the provisions of
  is released from a competitive level, an agency shall offer                   Civil Service laws applicable to officers and employees of the
  assignment, rather than furlough or separate, in                              United States, appoint such managers, assistant managers,
  accordance with paragraphs (b), (c), and (d) of this                          officers, employees, attorneys, and agents as are necessary for
  section to another competitive position which requires no                     the transaction of its business.” 16 U.S.C. § 831b (emphasis
  reduction, or the lease [sic] possible reduction, in                          added).      This means that TVA is exempted “from
  representative rate.                                                          conditioning its appointments on the passage of a competitive
                                                                                examination. The competitive examination is the touchstone
Id. § 351.701(a). Subsections (b) and (c) detail the                            of the competitive service.” Dodd, 770 F.2d at 1040. We
requirements for “bumping” (the right of one employee to                        agree with the Federal Circuit’s analysis and hold that TVA
displace another employee in a lower subgroup) and                              employees are not in the competitive service. Consequently,
“retreating” (the right to take a position within the same                      TVA employees are not entitled to the rights contained in 5
subgroup but held by someone with a lower retention                             U.S.C. § 2102 or 5 C.F.R. § 351.701. Accordingly, Plaintiff
standing). Id. § 351.701(b), (c). Plaintiff argues that TVA                     was not entitled to these retention preferences, and we affirm
only considered him for a SD-3 position, when in fact his                       the district court’s dismissal of Count 126.
bumping privileges entitled him to consideration for SD-2 and
SD-1 positions as well. Plaintiff also argues that TVA did not                  E. Count 127: Violation of Plaintiff’s Substantive RIF
accord him his retreating privileges either.                                       Rights
  However, as TVA correctly points out, § 351.701 applies                          Plaintiff also challenges his RIF on various substantive
only to employees in the competitive service. See 5 C.F.R.                      grounds. Specifically, he challenges the “overall legitimacy
§ 351.701(a). The next question is whether Plaintiff was                        of the reorganization” that caused his RIF. In responding to
employed in the competitive or excepted service. It does not                    such a claim, TVA bears the burden to demonstrate, by a
appear that we have squarely decided this issue,5 but the                       preponderance of the evidence, that the RIF was legitimate
Federal Circuit has. In Dodd v. Tennessee Valley Authority,                     and was properly applied to the individual employees. See
770 F.2d 1038 (Fed. Cir. 1985), the court looked at the                         Gandola v. FTC, 773 F.2d 308, 313 (Fed. Cir. 1985) (“If the
definition of “competitive service,” under 5 U.S.C. § 2102,                     agency proves that the reduction in force regulations were
which is “all civil service positions in the executive branch,                  invoked for a legitimate reason and that those regulations
except (A) positions which are specifically excepted from the                   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
    5
      However, at least one district court within this circuit has. See
                                                                                agency has the burden of demonstrating to the board that its
Pulley v. Ten n. Valley A uth., 368 F. Supp. 90, 93 (M.D. Tenn. 1973)           action is supported by a preponderance of the
(“TVA employees are not subject to the Civil Service Act, and are no t in       evidence . . . .”).
‘competitive service’ as define d in said Act.”) (citations omitted). See
also Jones v. Tenn. Valley Auth., 948 F.2d 258, 262 (6th Cir. 1991)               It is not disputed that the RIFs were part of a
(observing without discussion that the plaintiff, a TV A preference eligib le   reorganization, undertaken by TVA, of several departments.
veteran emp loyee, was in the excep ted service).
No. 01-5953 Seay v. Tennessee Valley Authority et al. 33            34 Seay v. Tennessee Valley Authority et al. No. 01-5953

A reorganization is an appropriate reason for a RIF. See 5          the validity of the suspension,6 and Count 129 alleged that
C.F.R. § 351.201(a)(2) (“Each agency shall follow this part         TVA subjected Plaintiff to racially disparate treatment by
when it releases a competing employee from his or her               suspending him for sixty days, while suspending white
competitive level . . . when the release is required because of     employees for only thirty days for the same offense. TVA’s
. . . reorganization . . . .”); Gandola, 773 F.2d at 312 (holding   vehicle use policy reads as follows:
that a RIF taken “to reduce the manpower within the ceiling
allocation” constituted “an appropriate management                    An officer or employee of the United States Government
consideration”) (internal quotation marks omitted).                   or of the District of Columbia government violating
Moreover, it is not disputed that the RIF applied to everyone         section 1341(a) or 1342 of this title shall be subject to
in Plaintiff’s department; therefore it occurred in an even-          appropriate administrative discipline including, when
handed manner. Plaintiff’s suspicions about the consultant,           circumstances warrant, suspension from duty without pay
Scott Madden, who had advised TVA to undertake the                    or removal from office.
reorganization, are insufficient to overcome TVA’s showing
that the RIF occurred pursuant to “bona fide management             31 U.S.C. § 1349.
considerations.” Gandola, 773 F.2d at 312. Because TVA
met its burden of demonstrating that the RIF was legitimate,          As to Count 128, Plaintiff argues that genuine issues of
and Plaintiff has not asserted any genuine issue of material        material fact remain as to whether the suspension was
fact to rebut the RIF’s evident legitimacy, we affirm the           appropriate. Specifically, Plaintiff argues that a genuine issue
district court’s grant of summary judgment to TVA on this           remained as to whether he willfully violated the policy. In
claim.                                                              support, Plaintiff points to the October 7, 1991 issue of
                                                                    TVA’s daily publication, “TVA Today,” which announced a
F. Count 131: Adverse Action as to Plaintiff’s RIF                  change in the vehicle use policy:
   Rights
                                                                      Employees may now use TVA vehicles or rental cars for
  Count 131 of Plaintiff’s amended complaint sought a                 incidental purposes without getting their supervisors’
review of his RIF pursuant to MSPB guidelines. However,               permission. The policy change is effective immediately.
Count 131 does not allege that TVA committed any particular           Supervisors have been sent background information
violation in conducting the RIF. Moreover, on appeal                  about the change to help answer employees’ questions.
Plaintiff does not advance any theories to support this claim.        Details are in the Oct. 8 issue of Inside TVA.
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                                        6
                                                                          In 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
  Plaintiff also challenges his sixty-day suspension for            because Plaintiff failed to develop an administrative record with the
violating TVA’s vehicle use policy. Count 128 challenged            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 reg ard lacks merit.
No. 01-5953 Seay v. Tennessee Valley Authority et al. 35             36 Seay v. Tennessee Valley Authority et al. No. 01-5953

(J.A. at 1270.) Plaintiff argues that because TVA started to         v. Commonwealth Life Ins. Co., 40 F.3d 796, 802 (6th
allow employees to use the TVA vehicles for incidental               Cir.1994).
purposes, he thought he was permitted to drive from Raccoon
Mountain to Birmingham for his law school class, which was             The parties dispute whether Plaintiff can satisfy the
139 miles away.                                                      “similarly-situated” requirement. Plaintiff points to four
                                                                     employees: Danny Seal (no discipline), Tanveer Khalid (no
   Plaintiff’s argument is insufficient to establish a genuine       discipline), Guy Kidd (thirty-day suspension), and Roy
issue of material fact. First of all, there is no dispute that the   Mason (thirty-day suspension). Although these employees all
statute mandates penalties for violators of this statute.            misused TVA vehicles and received less discipline, the facts
Second, we seriously doubt that any reasonable juror would           surrounding Seal’s, Khalid’s, and Kidd’s violations differ in
believe, in good faith, that a 139-mile trip (one way) is            relevant respects from the facts surrounding Plaintiff’s
incidental, or that an employee would reasonably believe that        violation. In the cases of Seal and Khalid, TVA’s
such a trip was incidental. Because we find that Count 128           investigation determined that their respective supervisors had
lacks merit, we affirm the dismissal of that count.                  approved their misuses of the TVA vehicles (and therefore
                                                                     those employees were not disciplined because they did not
  Plaintiff also argues that the district court erred in             willfully violate the policy), whereas nobody had approved
dismissing Count 129 (racially disparate treatment regarding         Plaintiff’s misuse. Plaintiff has offered nothing to contradict
Plaintiff’s suspension) because genuine issues of material fact      the accuracy of this finding. Kidd used a TVA vehicle to take
remain as to whether TVA engaged in racial discrimination in         his wife and neighbor to church on one occasion, whereas
violation of Title VII by suspending Plaintiff for sixty days        Plaintiff received a sixty-day suspension because he misused
when it suspended white violators of the policy for only thirty      a TVA vehicle “on two separate occasions.” (J.A. at 493.)
days.                                                                Because of these relevant differences, we do not believe that
                                                                     these three non-protected employees Plaintiff identified are
   In order to establish a prima facie claim of disparate            sufficiently “similarly-situated” for Plaintiff to establish his
treatment, a plaintiff must “produce evidence which at a             prima facie case.
minimum establishes (1) that he was a member of a protected
class and (2) that for the same or similar conduct he was              However, Plaintiff has also identified Roy Mason, a white
treated differently than similarly-situated non-minority             employee who had used a TVA vehicle to haul his boat to a
employees.” Mitchell v. Toledo Hosp., 964 F.2d 577, 583              lake. The record indicates that Mason’s violation was not
(6th Cir. 1992). Moreover, “the plaintiff must show that the         approved by any of Mason’s superiors and that the violation
‘comparables’ are similarly-situated in all respects, absent         occurred on two occasions. Despite these similarities, Mason
other circumstantial or statistical evidence supporting an           was suspended for only thirty days, while Plaintiff received
inference of discrimination.” Ercegovich v. Goodyear Tire &          sixty days.
Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998) (quoting
Mitchell, 964 F.2d at 583) (internal quotation marks omitted).          TVA nevertheless asserts that Mason is not similarly-
This means a plaintiff must “prove that all of the relevant          situated because he and Plaintiff worked in different TVA
aspects of his employment situation were ‘nearly identical’ to       departments and had different supervisors. It is true that
those of [the non-minority's] employment situation.” Pierce          similarly-situated employees ordinarily “must have dealt with
                                                                     the same supervisor, have been subject to the same standards
No. 01-5953 Seay v. Tennessee Valley Authority et al. 37           38 Seay v. Tennessee Valley Authority et al. No. 01-5953

and have engaged in the same conduct without such                  that Mason and Plaintiff were “subject to the same standards”
differentiating or mitigating circumstances that would             or that Mason’s conduct included “differentiating or
distinguish their conduct or the employer’s treatment of them      mitigating circumstances that would distinguish their conduct
for it.” Mitchell, 964 F.2d at 583 (citations omitted).            or the employer’s treatment of them for it.” Mitchell, 964
However, the “same supervisor” criterium has never been            F.2d at 583. Despite the similar circumstances, Plaintiff was
read as an inflexible requirement. The requirement is              punished for a time period that was twice as long as Mason’s.
particularly problematic here, where a violation such as           We therefore conclude that Plaintiff has demonstrated that he
vehicle misuse does not occur frequently enough to invite          and Mason were similarly-situated in all relevant respects.
such a direct comparison within a compartmentalized                Because Plaintiff satisfied his prima facie case with respect to
organization. See Ercegovich, 154 F.3d at 353 (noting that         Count 129, we reverse the district court’s grant of summary
inflexible criteria for establishing the similarly-situated        judgment to TVA on this claim.
requirement would mean that “a plaintiff whose job
responsibilities are unique to his or her position will never                                    VI
successfully establish a prima facie case (absent direct
evidence of discrimination)”). In such cases, we have                Finally, Plaintiff argues that the district court erred in
emphasized the importance of “mak[ing] an independent              denying his motion to strike evidentiary submissions TVA
determination as to the relevancy of a particular aspect of the    presented with its reply brief. He argues that this was
plaintiff’s employment status and that of the non-protected        prejudicial to his case because he was not allowed to respond
employee.” Id. at 352. Thus, a plaintiff “need not                 to the new evidence TVA submitted with its reply brief.
demonstrate an exact correlation with the employee receiving
more favorable treatment” so long as the two employees are            “We review the decision to grant or deny a motion to strike
“similar in ‘all of the relevant aspects.’” Id. (citing Pierce,    for an abuse of discretion, and decisions that are reasonable,
40 F.3d at 802).                                                   that is, not arbitrary, will not be overturned.” Collazos-Cruz
                                                                   v. United States, 117 F.3d 1420 (Table), 1997 WL 377037, at
  In the present case, the record indicates that the decision to   *2 (6th Cir. July 3, 1997) (per curiam) (citing Whitted v. Gen.
suspend Plaintiff for sixty days was not made in a vacuum.         Motors Corp., 58 F.3d 1200, 1203 (7th Cir. 1995)); see also
Several discussions took place, as well as a meeting in which      Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1164 (10th Cir.
participants included Johnson (Plaintiff’s immediate               1998) (applying an abuse of discretion standard to the district
supervisor), Walters (the Labor Relations and Safety               court’s ruling allowing the defendant to file a reply brief but
Department manager and Johnson’s supervisor), a                    denying the plaintiffs’ motion to file a surreply brief).
representative from TVA’s human resources department
(which is involved in any type of disciplinary action), and a        The facts demonstrate that with respect to TVA’s first and
representative from TVA’s legal department. Past discipline        third motions for partial summary judgment, Plaintiff filed
for similar misuses was discussed at that meeting. Thus, all       opposition papers, and more than five days later TVA filed
of the people involved in the decision-making process,             reply briefs, to which it attached additional evidence in the
including Plaintiff’s immediate supervisor and the department      form of declarations with exhibits. The additional evidence
manager, were well-aware of the discipline meted out to past       was not included with TVA’s original motions. Plaintiff filed
violators, including Roy Mason, who had violated the policy        motions to strike these evidentiary submissions, and the
on at least two occasions. Moreover, TVA does not dispute          district court denied Plaintiff’s motions. Plaintiff argues on
No. 01-5953 Seay v. Tennessee Valley Authority et al. 39                       40 Seay v. Tennessee Valley Authority et al. No. 01-5953

appeal that the district court abused its discretion in allowing               court’s decision not to strictly enforce Local Rule 7.1.
these evidentiary submissions because (1) the reply briefs                     However, we conclude that the district court was not entitled
were not timely filed pursuant to Local Rule 7.1(a) of the                     to enter summary judgment for TVA under these
Eastern District of Tennessee,7 and (2) in granting summary                    circumstances, inasmuch as Plaintiff was not accorded an
judgment, the district court relied on new evidence in TVA’s                   adequate opportunity to respond to the new evidence
reply briefs without first affording Plaintiff an adequate                     presented with TVA’s reply briefs.
opportunity to respond to that new evidence.8
                                                                                  When new submissions and/or arguments are included in a
  In denying Plaintiff’s motions to strike, the district court                 reply brief, and a nonmovant’s ability to respond to the new
reasoned that TVA’s evidentiary submissions merely pointed                     evidence has been vitiated, a problem arises with respect to
out additional facts that Plaintiff had in his possession and                  Federal Rule of Civil Procedure 56(c). Rule 56(c) requires
could have addressed in his response brief, and that the                       that an adverse party receive ten days notice before a district
Federal Rules of Civil Procedure did not preclude TVA from                     court may enter summary judgment. Fed. R. Civ. P. 56(c);
including these new submissions in its reply brief.                            Employers Ins. of Wausau v. Petroleum Specialties, Inc., 69
                                                                               F.3d 98, 105 (6th Cir. 1995). The purpose of Rule 56(c) is to
  We only partially agree with the district court. Although                    afford the nonmoving party notice and a reasonable
the second and third reply briefs were not timely filed in                     opportunity to respond to the moving party’s summary
accordance with Local Rule 7.1, we do not agree with                           judgment motion and supporting evidence. See Celotex Corp.
Plaintiff that it would always be appropriate, barring extreme                 v. Catrett, 477 U.S. 317, 326 (1986) (holding that summary
circumstances, for us to preclude a submission to the district                 judgment is to be entered only if the nonmovant is on notice
court for failure to comply with the requirements of a local                   that it must come forward with all of its evidence). It is only
rule. Salehpour v. Univ. of Tenn., 159 F.3d 199, 205 (6th Cir.                 logical that the purposes of notice and opportunity to respond
1998) (citing Stough v. Mayville Comm’ty Schs., 138 F.3d                       extend Rule 56(c) to the situation where the moving party
612, 614-15 (6th Cir. 1998)). Enforcing timely filing, on                      submits in a reply brief new reasons and evidence in support
these facts, does not constitute an extreme circumstance. We                   of its motion for summary judgment, and require a district
therefore are not inclined to reverse based on the 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.
    7
                                                                               1985)). This is particularly true when the district court relies
      Local Rule 7 .1 sets a d efault briefing schedule for motion practice,   on the new evidentiary submissions.9
providing that “any reply brief and accomp anying material shall be served
and filed no later than 5 days after the se rvice o f the answering b rief.”
E.D . T E N N . L OC AL R. 7.1.
                                                                                   9
    8
                                                                                       TVA argues on appeal that Plaintiff could have filed a surreply,
      Plaintiff also argues on appeal that the district co urt erred in        pursuant to Ea stern D istrict of T ennessee Local Rule 7.1(d ). See E.D.
allowing evidentiary subm issions in TV A’s reply brief in sup port of its     T E N N . L OCAL R. 7.1(d). However, this is beside the point, as the district
fourth summ ary jud gment motion. However, P laintiff did not move to          court granted summary judgment only three days after TVA filed the
strike these evidentiary submissions below; he moved to strike the             reply brief, arguably too swiftly for Plaintiff to have requested a surreply.
amended summary judgment motion. Therefore, we will not consider any           TVA also cites Peters v. Linc oln E lectric C o., 285 F.3d 456, 476 -77 (6 th
of Plaintiff’s arguments with respect to the fourth summary judgment           Cir. 2002), which held that the district court did not err in considering an
motio n here.                                                                  affidavit submitted with a reply brief because the plaintiff had an
No. 01-5953 Seay v. Tennessee Valley Authority et al. 41                          42 Seay v. Tennessee Valley Authority et al. No. 01-5953

  In this case, most of TVA’s additional submissions                                                           VII
consisted of evidence Plaintiff already had included among
his evidentiary submissions to the district court. However, at                      For all the foregoing reasons, we AFFIRM the district
least one of TVA’s submissions involved new evidence. The                         court’s grant of summary judgment in favor of TVA on
new evidence concerned a declaration from Rowena Belcher,                         Counts 15, 123, 125 (with respect to reemployment rights),
General Manager of Human Resources for TVA’s Chief                                126, 127, 128, and 131. However, we REVERSE the grant
Operating Officer Fossil Power Group organization. The                            of summary judgment in favor of TVA on Counts 67, 75, 125
declaration was dated March 22, 2001, seven days after                            (with respect to reassignment rights), and 129, as well as the
Plaintiff filed his papers in opposition to TVA’s summary                         district court’s denial of Plaintiff’s motion to strike the new
judgment motion. Exhibits C and D attached to the                                 evidentiary submissions attached to TVA’s first and third
declaration involved newly-produced evidence. The district                        reply briefs. We REMAND those claims to the district court
court issued an order granting TVA’s motion just three days                       for further consideration not inconsistent with this opinion.
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.




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.
