01985718
05-19-2000
Richard E. Rogers, Complainant, v. Craven H. Crowell, Jr., Chairman, Tennessee Valley Authority, Agency.
Richard E. Rogers v. Tennessee Valley Authority
01985718
May 19, 2000
Richard E. Rogers, )
Complainant, )
) Appeal No. 01985718
v. ) Agency No. 0726-95116
)
Craven H. Crowell, Jr., )
Chairman, )
Tennessee Valley Authority, )
Agency. )
____________________________________)
DECISION
On July 3, 1998, Richard E. Rogers (hereinafter referred to as
complainant) initiated an appeal to the Equal Employment Opportunity
Commission (Commission) from a final decision of the agency concerning his
complaint of discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. �2000e et seq.<1> The final agency
decision was received by complainant's attorney of record on June 8, 1998.
Accordingly, the appeal is timely, and is accepted in accordance with
64 Fed.Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. �1614.405).
The issue on appeal is whether complainant proved, by a preponderance of
the evidence, that he was discriminated against on the basis of his race
(black) when he was not transferred to the agency's Cumberland Fossil
Plant in August 1994, and when he was not selected for a Foreman position
at that facility.
Complainant filed a formal EEO complaint in July 1995, raising the
above-referenced allegation of discrimination. The agency accepted
complainant's complaint for processing, and conducted an investigation.
After complainant withdrew his request for an administrative hearing,
the agency issued a final decision dated June 3, 1998, finding that
complainant had not been subjected to discrimination on the basis of
his race. It is from this decision that complainant now appeals.
A review of the record reveals that complainant, a Steamfitter/Welder,
contacted the Manager of Human Resources at the Cumberland Fossil Plant
in August 1994, and expressed his desire to transfer to that facility.
The complainant faxed a letter stating his request on August 26, 1994.
Complainant subsequently met the Plant Manager of the Cumberland
Fossil Plant at a banquet, and again indicated that he was seeking
a transfer. Complainant asserted that he was led to believe the Plant
Manager would act on his request after the facility completed a reduction
in force. Complainant noted that the facility hired three or four white
Steamfitters in August 1994. Complainant also applied for the position
of Steamfitter Foreman on August 20, 1994, but was not interviewed for
the position.
The Plant Manager denied telling complainant that he would be transferred
to the Cumberland facility, stating that, instead, he advised complainant
that he would receive equal consideration for any position. The Plant
Manager noted that no Steamfitters had transferred to the facility since
June 1994. While he acknowledged that four individuals had been hired
in early August 1994, he stated that he was not aware of complainant's
desire for a transfer at that time.<2> The Plant Manager indicated
that, prior to learning that all Steamfitter positions had been filled,
he advised the Diversity Committee that he would act quickly to consider
minorities for any vacant positions. The Plant Manager noted that the
facility was in the process of offering employees "early out," but that
most of those positions were eliminated.
With regard to the Foreman position, the Plant Manager and the Selecting
Official stated that the vacancy announcement was canceled and the
position was never filled. Both individuals noted that the facility
attempted to form several composite crews and hire Foremen to supervise
employees in more than one area. A number of grievances were filed
over a similar selection, and management chose to cancel other such
selections until those actions were resolved. The Selecting Official
indicated that management decided to cancel the vacancy announcements
before the candidates had been evaluated.
The complaint herein presents the issue of whether the agency subjected
the complainant to disparate treatment on the bases of his race.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), provides an
analytical framework for proving employment discrimination in cases in
which disparate treatment is alleged. First, complainant must establish
a prima facie case by presenting enough evidence to raise an inference
of discrimination. McDonnell Douglas, supra, at 802. The agency
may rebut complainant's prima facie case by articulating legitimate,
nondiscriminatory reasons for its action, and if the agency does so,
complainant must show, by a preponderance of the evidence, that the
agency's reasons are a pretext for discrimination. Id.
The Commission notes that while the agency stated that complainant
failed to establish a prima facie case because he did not show that he
was treated differently than similarly situated employees, complainant
must only present evidence which, if unrebutted, would support an
inference that the agency's actions resulted from discrimination.
O'Connor v. Consolidated Coin Caters Corp., 517 U.S. 308 (1996);
Enforcement Guidance on O'Connor v. Consolidated Coin Caters Corp.,
EEOC Notice No. 915.002, n. 4 (September 18, 1996). Nevertheless, in
appropriate circumstances, when the agency has established legitimate,
nondiscriminatory reasons for its employment decision, the trier of fact
may dispense with the prima facie inquiry and proceed to the ultimate
stage of the analysis, that is, whether the complainant has proven by
preponderant evidence that the agency's explanations were a pretext for
actions motivated by prohibited discriminatory animus. See United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711 (1983).
In the case herein, the agency stated that there were no Steamfitter
positions available to which complainant could transfer. While four
Steamfitters were hired at the Cumberland facility, the record shows
that those individuals were hired prior to management's learning
of complainant's request for a transfer. Further, the agency never
filled the Foreman position. The Commission notes that complainant
has not shown that the Plant Manager or the Selecting Official acted
with discriminatory animus. Therefore, the Commission finds that
complainant failed to prove, by a preponderance of the evidence, that
he was subjected to race discrimination when he was not transferred to
the Cumberland facility or selected for a Foreman position.
CONCLUSION
Based upon a review of the record, and for the foregoing reasons, it is
the decision of the Commission to affirm the agency's final decision of
no discrimination based on race.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS
OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the
absence of a legible postmark, the request to reconsider shall be deemed
timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. �1614.604).
The request or opposition must also include proof of service on the
other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. �1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
You have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. If you file a civil action, YOU MUST NAME AS
THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD
OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND
OFFICIAL TITLE. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
05-19-00
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________ __________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2The report of investigation shows that two Steamfitters were hired on
August 9, 1994, and two on August 12, 1994.