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February 17, 1987

Mayretta Wilson-Thomas
Small Business Administration

The opinion of the court was delivered by: NEWCOMER


 I have considered the evidence and the arguments of counsel, and I am prepared to make my findings of fact and conclusions of law.

 Findings of Fact

 1. Plaintiff, Mayretta Wilson-Thomas, a black female was hired as a secretary at the GS-5 level by the Small Business Administration (SBA) Management Assistance Division in October 1980. William Gennetti, District Director for the Philadelphia SBA District Office and Mr. Fedyne, plaintiff's supervisor, originally recommended hiring her over several other candidates.

 2. In early 1981, the Reagan administration implemented a freeze on all federal civilian hiring.

 3. The freeze prohibited the SBA from replacing employees who left the employment of the agency. It allowed job changes within the agency. However, any job change would result in a vacancy in the position that an employee left and could not be filled except with intra-agency transfers. Transfers within the agency above the level of GS-12 required special clearance from SBA Headquarters in Washington, D.C.

 4. During the relevant time period, no time limit was placed on the hiring freeze, and the Philadelphia District Director's Office did not know when the hiring freeze would end.

 5. During the hiring freeze, the number of employees in the SBA District Office declined, because some people left the office and they could not be replaced.

 6. Early in 1981, plaintiff expressed dissatisfaction to Gennetti with her position in the Management Assistance Division because of alleged racial discrimination, and personality differences with her supervisor, Mr. Fedyne. Gennetti suggested a lateral transfer as a possible resolution of her concerns.

 7. In response to plaintiff's concerns, during the first six months of 1981, Gennetti instituted a series of job switches to accommodate plaintiff's desire to be transferred into the Minority Small Business/Capital Ownership Development (MSB/COD) Division as a GS-5 secretary. Another secretary took her former slot. As Mr. Gennetti told Ms. Wilson-Thomas at that time, this transfer had nothing to do with plaintiff's desire to be redesignated as a Business Development Technician (BDT) within MSB/COD, but rather was an independent change.

 8. From October 1979 until April 1981, Mr. William Jones was the Assistant Director of the MSB/COD Division of SBA. Jones reported to Gennetti. From the time he took the position, Jones repeatedly asked that Gennetti hire an assistant for Mr. Jones in MSB/COD, as well as relief from other understaffing problems. Gennetti did not believe that such an assistant was needed. Nonetheless, Gennetti approved the creation of such a job, which came to be known as Business Development Technician. Mr. Gennetti lacked confidence in Mr. Jones' ability to perform his duties as Assistant Director of MSB/COD, and to train his own assistant to perform the technical aspects of the BDT job at the same time.

 9. Gennetti did not have the authority to hire employees. Instead he made recommendations to the Regional Administrator for such decisions. Likewise, Jones did not have the authority to make employment decisions or to commit positions to employees.

 10. The chain of command for personnel decisions requires that the Assistant District Director for the MSB/COD interview a candidate selected from a roster of eligible candidates prepared by the personnel office and make a recommendation to the District Director, who may or may not follow that recommendation. If the District Director follows the recommendation, he forwards it to the personnel office, which in turn forwards it to the Assistant Regional Administrator for that program. Approval must be obtained at each level. The Equal Employment Office reviews and approves the recommendation. Then, and only then does the Regional Administrator make the employment selection.

 11. Gennetti anticipated that when the freeze lifted, he would receive authority to fill three additional employment positions in his district because of the recommendation of a staffing study of the Region. After several discussions with Jones on the subject of hiring an assistant for Jones, Gennetti told Jones that if all three ...

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