01974914
09-09-1999
Sharon D. Melbert, Appellant, v. Craven H. Crowell, Jr., Chairman, Tennessee Valley Authority, Agency.
Sharon D. Melbert v. Tennessee Valley Authority
01974914
September 9, 1999
Sharon D. Melbert, )
Appellant, ) Appeal No. 01974914
)
v. ) Agency Nos. 5430R; 0706-94088
)
Craven H. Crowell, Jr., ) Hearing Nos. 250-95-8077X
Chairman, ) 250-95-8073X
Tennessee Valley Authority, )
Agency. )
_______________________________)
DECISION
Appellant filed an appeal with this Commission from a final decision
of the Tennessee Valley Authority (agency) concerning her complaint
of unlawful employment discrimination, in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
Appellant alleges discrimination based upon her race (Black) when: (1)
she was not considered or selected for the position of Training officer,
PG-2, in December, 1989; and (2) she was not selected for the position
of Manager, Chattanooga Distribution Center, PG-6, in April, 1994.
The appeal is accepted in accordance with EEOC Order No. 960.001.
On March 7, 1990 and July 4, 1994, appellant filed formal complaints
alleging discrimination as referenced above. Appellant's complaints
were accepted for processing. Following an investigation, appellant
requested a hearing before an EEOC Administrative Judge (AJ) which took
place on September 12, 1996. On February 28, 1997, the AJ rendered his
recommended decision finding no discrimination. The agency subsequently
adopted the AJ's recommended decision. It is this agency decision which
the appellant now appeals.
The record reveals that appellant began her employment with the agency
in 1977, as a Clerk, at Bellefonte Nuclear Plant. Appellant worked
her way up the ranks to the position of Administrative Officer and for
a period (August, 1987 to August, 1988) she was selected and served as
a Training Officer. Facing a reduction in force (RIF) in July, 1988,
appellant accepted a position as a Program Administrator. Appellant
occupied this position when the Training Officer, PG-2 position became
available in 1989.
The record also reveals that in or about 1989, a management position
(Training Officer, PG-2) was created for the sole purpose of bringing
an agency employee, C1, (white) from the Knoxville facility to
the Chattanooga facility. Appellant did not apply for the vacancy
because she was not aware of its existence, until after it was filled.
The position was not posted. The Training Officer, PG-2 position was
filled through a waiver process, which allowed managers to sidestep the
posting of vacancy announcements.
Appellant remained a Program Administrator, until 1992, at which
time she was promoted to the Specialist, PG-6, level, as a Materials
Management Specialist. In March, 1994, a vacancy occurred in the
Manager, Chattanooga Distribution Center, PG-6 position. The manager of
all distribution centers (RO) had the announcement posted agency-wide.
Effective October 26, 1990, all vacancies of management positions were
required to be posted. Waivers to the posting requirement were granted
under extremely unusual circumstances. A pool of 32 applicants, including
appellant, applied for the position. RO trimmed the applicant pool down
to four candidates who met the minimal qualifications. Appellant and C2
(White) were within the four-person group. RO conducted interviews and
ultimately selected C2 for the position.
1989 Selection
With respect to the 1989 selection, the AJ found that appellant presented
a prima facie case of discrimination despite the fact that appellant did
not apply for the position. The AJ noted that it was undisputed that
appellant was not aware of the vacancy since the agency failed to announce
the vacancy. In addition, the AJ noted that appellant presented evidence
that she was not permitted the opportunity to apply for the position
for which she was qualified and the selectee fell outside appellant's
protected class.
However, the AJ found that appellant failed to discredit the agency's
articulated legitimate, non-discriminatory justification for its
employment action. Specifically, the AJ found that certain management
officials had agreed to a "job-swap" program which allowed displaced
employees (like C1) to be returned to the Chattanooga facility.
Appellant argued that the following supported a finding of pretext:
(1) C1 was not as qualified as appellant; (2) the "job swap" was
not a valid "unusual circumstance" to justify a waiver of posting;
(3) the agency's RIF policy on re-employment rights was not followed;
and (4) the responsible management officials (RMOs) did not consider
appellant although they were aware of her capabilities and desire for the
training position because she was absent from their memory when they were
considering the selection. The AJ found the issue as to whether C1 was
less qualified than appellant to be moot since the agency concedes that
appellant was not considered at all in the selection process.<1> The AJ
also found that during the relevant time period, posting was not required.
Accordingly, no waiver was necessary. Assuming the agency's RIF policy on
re-employment rights was not followed, the AJ did not see how appellant
was affected by it considering she was never RIF'ed. The AJ further
noted that appellant presented no evidence of discriminatory animus.
After reviewing the entire record, the AJ found that the agency
specifically hand-picked C1 and place her in the position. However,
the AJ found no evidence to conclude that its employment action was a
conspiracy to side step appellant specifically on account of her race.
1994 Selection
The AJ found that appellant sufficiently presented a prima facie case of
race discrimination with respect to the 1994 selection. Specifically,
the AJ noted that appellant is a member of a protected class, she applied
for a position for which she was qualified, and the ultimate selectee
was an individual outside appellant's protected class.
However, the AJ did not find that appellant met her ultimate burden of
proving race discrimination. Specifically, the AJ noted that the agency
articulated a legitimate, non-discriminatory reason for its employment
action. According to the RO, after comparing the four candidates'
service reviews, their past work experience, and their responses to
interview questions, he selected C2 for the position because he felt
that C2 had experience superior to appellant. Specifically, the RO
testified that the big difference between appellant and C2 was that C2
had hands-on experience in a more stringent environment (nuclear) working
directly in warehouses, and understood the processes and procedures
of a warehouse operation. The AJ further found that appellant did
not sufficiently prove pretext or discriminatory animus. Appellant,
through two witnesses, attempted to prove that C2 had no supervisory
experience and was less qualified. However, the AJ found that C2 worked
in two locations. A great deal of C2's time was spent at warehouses,
unseen by appellant's two witnesses. While neither witness observed C2
doing any supervisory work at one location, they also failed to follow
her to the other agency sites where she performed supervisory work.
According to the AJ, the record supported a finding that C2 was more
qualified than appellant for the position. After considering the record
in its entirety, the AJ also found that appellant failed to meet her
ultimate burden of proving discriminatory animus. Accordingly, the AJ
recommended a finding of no discrimination.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission
finds that, in all material respects, the AJ accurately set forth the
relevant facts and properly analyzed the case using the appropriate
regulations, policies, and laws. Nothing asserted by appellant on appeal
differs significantly from arguments previously raised and given full
consideration by the AJ. Accordingly, we discern no basis upon which
to disturb the AJ's finding of no discrimination and hereby AFFIRM the
agency's final decision.
STATEMENT OF RIGHTS -- ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407.
All requests and arguments must bear proof of postmark and 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 filed on
the date it is received by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction in
which your action would be filed. 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 (Z1092)
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:
9/9/99
_______________ _________________________________
DATE Carlton M. Hadden, Acting Director
1The agency also contends that no individual was considered other than C1.