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REILLY v. CALIFANO

January 27, 1981

SHEILA REILLY, PLAINTIFF,
v.
JOSEPH CALIFANO, SECRETARY OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, DEFENDANT.



The opinion of the court was delivered by: Flaum, District Judge:

MEMORANDUM OPINION

This action arises out of a claim by plaintiff based upon 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). Plaintiff, a woman, contends that she was denied a promotion to the position of Chief of the Labor-Management Relations Branch of the United States Department of Health, Education, and Welfare ("HEW")*fn1 on the basis of her sex. Plaintiff then filed a complaint with the Equal Employment Opportunity Commission ("EEOC") charging the defendant, Secretary of HEW,*fn2 with sex discrimination. Subsequently, plaintiff filed the instant case with this court. Plaintiff alleges that the defendant denied her the promotion on the basis of her sex. Plaintiff further alleges that her request for reimbursement for job related law school courses was denied by defendant in retaliation for the filing of the EEOC complaint. Defendant contends that plaintiff was not promoted to Chief of the Labor-Management Relations Branch because plaintiff is a "shy, retiring person" and defendant considered a "strong, outgoing" personality to be essential to the position. Defendant further contends that it denied plaintiff's training request because "extensive" training had been approved for plaintiff during the preceding eighteen months, the request totaled approximately one-third of the entire budget for such training, and plaintiff's training goals appeared to be law degree oriented which was not required for her position with HEW. The court concludes that plaintiff has not established that she was discharged because of her sex and enters the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52.

FINDINGS OF FACT

1. Plaintiff is a woman.

2. Defendant is a federal agency with an office located in Chicago, Illinois.

3. In August 1976, plaintiff was employed by HEW as a Labor-Management Relations Specialist, GS-12. Plaintiff had held that position since 1974. Plaintiff reported directly to LeRoy Bradwish ("Bradwish"), Chief of the Labor-Management Relations Branch and often served as chief in Bradwish's absence.

4. In August 1976, Bradwish announced that he was resigning as chief effective September 1, 1976. Richard Friedman ("Friedman"), Regional Director of HEW, called a meeting in his office to discuss filling the vacancy. The meeting was attended by Friedman; Bradwish; George Bardahl ("Bardahl"), Assistant Regional Director for Administration and Management of HEW; George Holland ("Holland"), Deputy Regional Director of HEW; and Thomas Dodson ("Dodson"), Regional Personnel Officer of HEW. At the meeting, Fried man stressed the importance of filling the vacancy as quickly as possible with the best qualified person with a labor relations back ground who had experience in dealing with unions.

5. Plaintiff was detailed to the position as Acting Chief of the Labor-Management Relations Branch, GS-13, for the interim between Bradwish's resignation and the appointment of his replacement.

6. Dodson posted a vacancy announcement, No. 476-56, for the position of Chief of the Labor-Management Relations Branch, GS-13. The vacancy was posted nationwide and invited any qualified HEW or federal employee to apply for the position. In addition, the Regional Personnel Office of HEW requested the names of candidates from outside HEW from the United States Civil Service Commission's Federal Automated Career System list ("FACS list"). The FACS list is a register maintained by the United States Civil Service Commission ("the Commission") which lists job applicants who have registered with the Commission for referral to positions within their areas of interest. The FACS list includes information regarding the applicants' relevant job experience.

7. Twenty-three (23) persons applied for the position of Chief of the Labor-Management Relations Branch. Five (5) of these applicants met the minimum requirements set by a promotion panel. The FACS list was considered, but the entire list did not arrive in time to meet the closing date.

8. Dodson recommended a promotion panel to rank the applicants. This recommendation was approved by Friedman Dodson developed a ranking system which consisted of factors under the general headings of "Experience," "Training," "Outside Activities," and "Awards and Citations." These general headings contained several 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 points.

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 ...


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