Richard E. Rogers, Complainant,v.Craven H. Crowell, Jr., Chairman, Tennessee Valley Authority, Agency.

Equal Employment Opportunity CommissionMay 19, 2000
01985718 (E.E.O.C. May. 19, 2000)

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.