Fang-Hui Liao v. Dean, Civ. A. No. 86-AR-5428-NW.

• Decision Date: 06 May 1987
• Docket Number: Civ. A. No. 86-AR-5428-NW.
• Citation: 658 F. Supp. 1554
• Parties: Christina FANG-HUI LIAO, Plaintiff, v. Charles H. DEAN, Jr., et al., Defendants.
• Court: U.S. District Court — Northern District of Alabama

658 F. Supp. 1554

Christina FANG-HUI LIAO, Plaintiff, v. Charles H. DEAN, Jr., et al., Defendants.

Civ. A. No. 86-AR-5428-NW.

United States District Court, N.D. Alabama, Northwestern Division.

May 6, 1987.

Ernest N. Blasingame, Jr., Florence, Ala., for plaintiff.

Lewis E. Wallace, Acting Gen. Counsel, Justin M. Schwann, Sr., Asst. Gen. Counsel, Thomas F. Fine, Senior Litigation Atty., John P. Kernodle, Tennessee Valley Authority, Knoxville, Tenn., for defendants.

MEMORANDUM OPINION

ACKER, District Judge.

Christina Fang-Hui Liao sued the Directors of her former employer, Tennessee Valley Authority, invoking 42 U.S.C. § 2000e et. seq., claiming that her termination by TVA as a research chemist was the result of racial and/or sexual discrimination. The court heard oral testimony and considered written evidence. The court makes the following findings of fact which bear upon the conclusions of law which it thereafter reaches.

Findings of Pertinent Fact

Dr. Liao is a female citizen of Chinese extraction. She was first employed by TVA on July 7, 1977, as a research scientist in the TVA's National Fertilizer Development Center (NFDC), Soil and Fertilizer Research Branch. When employed she held a Ph.D. in chemistry and was hired as a project co-leader for nitrogen research projects carried out at NFDC. Dr. Liao's entrance pay classification was SD-3, which was lower than the entrance pay classifications of white male Ph.D. research scientists employed before and after she was employed in NFDC. During her time of employment, Dr. Liao lodged written and verbal complaints with her supervisors alleging disparate treatment in several respects: (1) slow promotion and unfair differentiation in job classification; (2) lack of an exclusive laboratory and a laboratory assistant; (3) unfair performance evaluations; (4) non-exposure to educational seminars and advancement opportunities; and (5) ostracism. A good argument can be made that one or more of Dr. Liao's pretermination complaints was valid; but the court finds it unnecessary to decide whether or not anything Dr. Liao complained of prior to her termination constituted an act motivated by sexual and/or racial discrimination, that is, except to the extent that her complaints may tend to reflect an adverse white male reaction to TVA's affirmative action program (AAP), which will be the primary subject of this opinion.

Dr. Liao's complaint arises from her termination in a reduction in force (RIF) which took place on January 8, 1982. She was chosen as the only employee in the Soil and Fertilizer Branch to be involuntarily terminated in the RIF. Dr. Bert Bock, a white male with two years less seniority than Dr. Liao, was retained. This court has no doubt that Dr. Liao's original employment with TVA was due in large measure to TVA's AAP, which had been put in place shortly prior to her recruitment. How wonderful it was to have signed up a highly qualified Ph.D. who was also Asian and female. TVA's AAP, sometimes referred to as an "Equal Opportunity Plan of Action", as revised, contains several very revealing provisions, not the least of which is the self-criticism reflected in the statistics, clearly showing that women and minority TVA employees at the higher levels were and are not representative of their relative numbers in the work force generally. Another important provision, which is contained in any serious AAP, asserts the goal of attaining an increased and more nearly representative percentage of the underrepresented groups in the employer's work force. The court has read and considered TVA's entire AAP, together with certain collateral directives involving it. The court finds it unnecessary to repeat all of the affirmative action language, but does suggest that the following have particular significance:

As shown in Table 2, there is limited participation by women and no participation by blacks in the management schedule. The reasons are the same for both women and blacks. The vast majority of management positions in the division represents project leaders in the areas of soil science, agronomy, economics, biological sciences, or engineering. Most have "advanced degrees" in these technical fields and/or proven competence in these fields. Their classification as management reflects the past de facto recognition of the dual ladder concept rather than the supervisory concept need in many TVA organizations; hence, scientific or technical training, experience, and competence are major criteria. Very few women and blacks are pursuing advanced degrees in the agricultural sciences and engineering. Those who do are very actively recruited by industry, universities, and other government agencies. The combination of scarcity and demand has made it virtually impossible to date to recruit and retain qualified women and/or black employees in these project leader positions. We feel that participation by women in the other occupational classes is either in balance or made adequate progress during the reporting period. because of Dr. Liao's employment?

* * * * * * There is a significant disparity in the proportion of both women and blacks in lower level positions as compared with all employees. Both women and blacks are overrepresented in lower level positions.

* * * * * *

There is a wide disparity between the proportion of women and blacks in upper grade levels and that of the total employment.

* * * * * *

Soils and Fertilizer Research Branch — Special recruitment efforts were made during this reporting period to find qualified women or minorities to fill two positions as research soil chemists. The first position (SD-4) requires Ph.D.-level training and experience in transformations of soil and fertilizer nitrogen and proven ability to perform independent research. Repeated contacts with a number of land-grant universities and personal contacts with established researchers and graduate professors yielded no minority or women candidates and only two qualified white male applicants. An offer was made one of the applicants, and he has accepted employment beginning October 1979.

* * * * * *

A woman of Asian origin Dr. Liao was reclassified from Research Chemist, SD-3, to SD-4.

* * * * * *

In the M Schedule Dr. Bock is an M-5 professional categories the division is underrepresented in all protected class groups. In the SD schedule professional categories we have severe underrepresentation in all protected class groups with the exception of white and black females at the SD-1 level and black males at the SD-2 level. Dr. Liao was an SD-4 at the time of her termination.

* * * * * *

For Managers/Administrative, the internal work force has been our primary source. Since only white males occupied all of these positions, it is obvious that other sources should have been used more extensively.

* * * * * *

For most of the professional position vacancies, we have had no applicants from the protected class groups. This points up again our need to intensify our recruitment efforts for candidates from the protected class groups at all levels so that we will have a readily available pool of qualified applicants to draw upon.

* * * * * *

As pointed out earlier, in the occupations of Managers/Administrative and Life/Physical Scientists (both on the M scheduled and the SD schedule), we had only white male applicants, which emphasizes again our need for more intensive and extensive recruitment efforts.

* * * * * *

One Asian American female Dr. Liao was employed in this occupation during this period and received a promotion in FY 1979 ...

* * * * * *

Unfortunately, immediate vacancies for critical positions are difficult to hold for long-term recruitment or training strategy. Better planning and knowledge of minority opportunities are essential for corrective measures.

* * * * * *

The division goals are ambitious. All 11 vacancies are targeted to be filled with women or minorities. Our AAP is structured so as to identify applicant pools and overcome recruitment barriers to the extent possible for both internal and external sources. Recruitment strategies include a concerted effort to recruit and promote from within the division and TVA as well as extensive effort from the civilian labor force.

We anticipate that we will have to spend an inordinate amount of time recruiting Hispanics, Asian Americans, and American Indians. We expect more contact with organizations representing these groups along with more assistance from the Office of Personnel; however, we are confident that our hiring goals are achievable if budgets and manpower ceilings permit.

In a memorandum to all TVA employees dated May 24, 1979, the TVA chairman said:

Employees who have managerial or supervisory oversight of any kind have a special obligation to aggressively carry out TVA's policy on equal employment opportunity. You are expected to vigorously support all affirmative action programs designed to eliminate the present effects of past discrimination and to make sure all employment decisions are free from prohibited discrimination.

When budgetary constraints were imposed by the Government, a communication was received by TVA from the Office of Personnel Management under date of June 5, 1981. It said, inter alia:

In line with the President's commitment to reduce the level of Government spending and thereby help restore the vitality of the nation's economy, most of you will be operating under budget restrictions and reduced personnel ceiling levels during the next few years.

* * * * * *

For those agencies faced with a reduction-in-force, it is important to bear in mind the potential impact on veterans, handicapped, minority and female employees. In addition, agencies which will be hiring new personnel should consider using reemployment priority lists established by other agencies which have been subject to RIFs. Because of a tendency toward a "last hired, first fired" effect of RIF procedures, veterans, handicapped,

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