0120083550
10-29-2008
Glenda J. Lawrence, Complainant, v. Tom Kilgore, President and Chief Executive Officer, Tennessee Valley Authority, Agency.
Glenda J. Lawrence,
Complainant,
v.
Tom Kilgore,
President and Chief Executive Officer,
Tennessee Valley Authority,
Agency.
Appeal No. 0120083550
Agency No. 1031-2008004
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's July 9, 2008 final decision concerning her equal
employment opportunity (EEO) complaint alleging employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq.
The record reflects that during the relevant time, complainant was a
contract Metrial Handler provided by a corporate entity identified as
G-UB-MK Constructors at the agency's Colbert Fossil Plant in Tuscumbia,
Alabama.
On October 31, 2007, complainant filed the instant formal complaint.
Therein, complainant alleged that the agency discriminated against her on
the basis of reprisal for prior EEO activity when, on or about September
24, 2007, she was terminated from her assignment as a Material Handler
at Colbert Fossil Plant.1
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). When complainant
did not request a hearing within the time frame provided in 29 C.F.R. �
1614.108(f), the agency issued a final decision pursuant to 29 C.F.R. �
1614.110(b). The decision concluded that complainant failed to prove
that she was subjected to discrimination as alleged.
In its July 9, 2008 final decision, the agency found that complainant
did not establish a prima facie case of reprisal discrimination because
she had not shown there was a causal connection between the protected
activity and the alleged adverse action. The agency determined that
the passage of approximately six months between the prior protected
activity and the adverse action does not give rise to an inference of
retaliatory motive. The agency further found assuming, for sake of
argument, that complainant established a prima facie case, management
articulated legitimate, non-discriminatory reasons for its actions which
complainant failed to show were a pretext for retaliation.
The Site Procurement Manager (M1) stated that he was the deciding official
to release complainant from her contractor assignment because she was
not forklift-certified. Specifically, M1 stated that he terminated
complainant "based on her qualifications. She did not meet our
qualifications for Material Handler. And the TVA preaches safety and she
would not have been sufficient for our workload at that time. We did not
have time to train her. She had never been on a forklifit." M1 stated
that he contacted the Business Manager for Teamsters Local 402 (BM) to
request Material Handler support for one of the agency's largest outages.
Specifically, M1 stated that he needed someone who was forklift certified.
M1 stated that he had a conversation with BM why he sent complainant to
the agency without a forklift certification and "the nature of it was
that he didn't have anyone else on the bench to send, and he sent her
and I couldn't use her. And, he scrambled to find me good personnel,
qualified personnel to meet my demands." M1 stated that while he was
aware of complainant's prior protected activity, it was not a factor in
his determination to release her from her contractor assignment.
Complainant's former foreman (F1) stated that when complainant reported
to work, it was his job to ask her if she had her forklift certification.
F1 stated that complainant informed him that she had never been on a
forklift. F1 stated "we didn't have the time or the manpower to train
her, especially, since she had never been on a forklift." F1 stated
that during the relevant time the agency was "in a full blown outage
and actually we'd start getting busy way before an outage, getting in
materials."
The Human Resources Consultant (HR Consultant) stated that management
shared their concerns with him about complainant not having a forklift
certification. The HR Consultant stated that management "asked me could
they send her back, could they release her back to the contractor because
she was not qualified for the position." The HR Consultant stated that
he informed management that they could do that "based on the fact that
she did not have forklift certification."
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions; complainant did not possess a
required qualification for the Material Handler position. Complainant has
not demonstrated that these reasons were a pretext for discrimination.
After a review of the record in its entirety, including consideration
of all statements on appeal, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the agency's final decision because
the preponderance of the evidence of record does not establish that
discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). 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 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 (S0408)
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 (Z0408)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 29, 2008
Date
1 The record reflects that the position complainant was assigned
to and released from was "Warehouseman," not "Material Handler."
The record further reflects that the terminology "Material Handler"
and "Warehouseman" were used interchangeably in reference to the same
position.
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0120083550
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120083550