subcategories. The ranking system allotted each general
heading a maximum number of points, but the subcategories were
not numerically weighted. The maximum possible score was 100
9. The promotion panel met in October 1976 and ranked the
applicants. A promotion certificate dated October 8, 1976 was
submitted to Friedman. The certificate listed the plaintiff
and Sharon Bauer ("Bauer") as the best qualified candidates
for the position of Chief of the Labor-Management Relations
Branch. The plaintiff received 76 points and Bauer received 65
points out of the possible 100 points.
10. Friedman rejected both plaintiff and Bauer. Friedman
then decided to reannounce the position at a lower grade,
GS-12/13. Friedman testified that his reason for reannouncing
the position at a lower grade level was to attract additional
highly qualified candidates. Friedman testified that it was
within his authority to refuse to select any of the candidates
submitted on a promotion certificate. Friedman further
testified that he previously had reannounced positions when it
appeared that other more qualified candidates were available.
11. After being informed that she had not been chosen for
the position, plaintiff sought pre-complaint counseling from
12. On November 1, 1976, the position was reannounced with
the lower grade level as vacancy announcement No. 476-79.
Applicants under the previous announcement automatically were
considered as applicants for the reannounced position. Persons
on the FACS list also were considered.
13. A second promotion panel was convened to rank the
candidates. The ranking system was the same as the one used by
the first promotion panel, except that numerical weights were
assigned to the subcategories under the general heading of
"Experience." On November 19, 1976, the promotion panel
submitted a promotion certificate to Friedman. The certificate
listed Thomas Artman ("Artman"), plaintiff, and Cynthia Soltes
("Soltes") as "highly qualified" for the position. Artman
received 87 points, plaintiff received 73 points, and Soltes
received 67 points.
14. On November 22, 1976, plaintiff was interviewed by
Friedman and Holland concerning her application for the
position. In addition, on November 24, 1976, both plaintiff
and Soltes were interviewed by Dodson and Bardahl.
15. On November 23, 1976, plaintiff filed a formal complaint
with the EEOC against the defendant, Friedman, Bardahl, and
Dodson. Friedman and Bardahl were notified of the complaint on
the same day that the complaint was filed.
16. On November 24, 1976, Friedman announced that Soltes had
been selected for the position. Friedman testified that he
felt that Soltes was the most qualified person for the
position since she is an "outgoing and aggressive" individual
with experience in dealing with unions.
17. On December 6, 1976, Dodson refused to approve
plaintiff's request for funds for two labor law courses.
Dodson previously had approved plaintiff's requests for funds
for law school courses. Dodson testified that his reasons for
not approving plaintiff's request were that extensive training
had been approved for plaintiff during the preceding eighteen
months, including three law school courses, that the request
totaled approximately one-third of the entire budget for such
training, and that plaintiff's training goal appeared to be
law degree oriented which was not required for her position
18. Friedman testified that, while plaintiff was a competent
employee, he had observed plaintiff to be a shy, retiring
person. Friedman also testified that he considered a strong,
outgoing personality essential to the position. Friedman
further testified that he felt that plaintiff would not
perform well under the type of pressure generated by
face-to-face union negotiations. In addition, Friedman
testified that he considered Bauer to be "marginally
qualified" for the position.
19. Friedman testified that as Regional Director of HEW he
attempted to place more women and members of racial minorities
in higher grade level positions with HEW. Friedman also
testified that he had not achieved what he considered to be a
representative balance of women and minority members by 1976.
Friedman further testified that it was for this reason that he
endeavored to fill the position of Chief of the
Labor-Management Relations Branch with a qualified woman or
minority member, if at all possible.
CONCLUSIONS OF LAW
1. The court has jurisdiction over this action under title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
(1978), as amended by the Equal Employment Act of 1972,
42 U.S.C. § 2000e-16(c) (1978).
2. An employer-employee relationship existed between
plaintiff and defendant during the relevant time period.
3. The defendant is an agency of the federal government
within the meaning of 42 U.S.C. § 2000e-16(a) (1978) which
provides, in pertinent part:
All personnel actions affecting employees or
applicants for employment . . . in executive
agencies (other than the General Accounting
Office) as defined in section 105 of Title 5
(including employees and applicants for
employment who are paid from nonappropriated
funds), in the United States Postal Service and
the Postal Rate Commission, in those units of the
Government of the District of Columbia having
positions in the competitive service, and in
those units of the legislative and judicial
branches of the Federal Government having
positions in the competitive service . . . shall
be made free from any discrimination based on
race, color, religion, sex, or national origin.
4. In a case alleging disparate treatment, the employer has
treated some employees more favorably than others because of
their race, color, religion, sex, or national origin and thus
proof of discriminatory motive is critical. Furnco Construction
Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57
L.Ed.2d 957 (1978); International Brotherhood of Teamsters v.
United States, 431 U.S. 324, 335 n.15, 97 S.Ct. 1843, 1854, 52
L.Ed.2d 396 (1977).
5. In a title VII case, the plaintiff bears the initial
burden of establishing a prima facie case of discrimination.
Furnco Construction Corp. v. Waters, 438 U.S. 567, 576, 98
S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978); McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36
L.Ed.2d 668 (1973); Sherkow v. Wisconsin, 630 F.2d 498, 502
(7th Cir. 1980); Gaballah v. Johnson, 629 F.2d 1191, 1200 (7th
Cir. 1980). In a sex discrimination employment action where
individual disparate treatment is alleged, it is incumbent upon
the plaintiff to offer proof of the following propositions in
order to establish a prima facie case:
(1) The plaintiff is a woman.
(2) The defendant had an employment vacancy
which it sought to fill.
(3) The plaintiff possessed the qualifications
to fill the vacancy and applied.
(4) The plaintiff was rejected.