United States District Court, Northern District of Illinois, Eastern Division
June 9, 1983
DIANE BOWIE, PLAINTIFF,
VETERANS ADMINISTRATION, ET AL., DEFENDANTS
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Diane Bowie ("Bowie"), a black female employee of the Veterans
Administration ("VA"), originally sued VA and VA Director Robert P.
Nimmo*fn1 under the federal governmental provision of Title VII of the
Civil Rights Act of 1964, as amended ("Title VII"),
42 U.S.C. § 2000e-16. Bowie's Complaint charges VA's failure to
select her for the position of Computer Programmer Trainee was
discriminatory. VA now moves under Fed.R.Civ.P. ("Rule") 12(b)(6) to
dismiss certain portions of the Complaint. For the reasons stated in this
memorandum opinion and order, VA's motion is denied.
In 1978 Bowie was employed as a computer technician at VA's Hines,
Illinois Data Processing Center (the "Center"). In May 1978 VA announced
the availability of approximately 26 Computer Programmer Trainee
positions at the Center. VA fielded applications from its own Center
employees as well as from outside individuals.
Of the 94 VA employee-applicants, 41 (or 44%) were black. To recruit
non-VA applicants, VA obtained from the then Civil Service Commission
(the "Commission")*fn3 a list of "eligibles" who had passed the
Commission's Professional and Administrative Career Examination
("PACE"). VA considered 19 persons from that list, all of whom were
VA evaluated its internal applicants on a numerical scale applied to
five criteria: (1) education; (2) experience; (3) performance
evaluation; (4) self-development and training; and (5) Computer
Test ("710 Test") score.*fn4 It then classified those applicants as
"highly qualified," "qualified" and (presumably, though the parties'
submissions do not identify such a category) "not qualified." Bowie was
placed in the "qualified" category. By contrast, the non-VA applicants
were appraised solely on the basis of their PACE scores. After completing
its review process, VA selected all 19 outside candidates and 7 VA
employees (only one of whom was black) ranked as "highly qualified."
Thus Bowie, though "qualified," was not among the chosen few. Her
non-selection was attributable to the discriminatory nature of two
components of the assessment process: (1) testing (both the 710 Test and
PACE) and (2) subjective criteria in the candidate's performance
evaluation. As for the tests, they implicated Title VII's
antidiscrimination mandate because:
1. Blacks scored significantly lower than whites
(Complaint ¶ 20).
2. Test results were neither "predictive of [nor]
significantly correlated with" an individual's
capability as a Computer Programmer Trainee
(Complaint ¶ 19).*fn5
Bowie filed a timely discrimination charge with the Equal Employment
Opportunity Commission ("EEOC"). After investigating Bowie's allegations,
Chicago's EEOC office concluded (Bowie Mem. Ex. A at 10):
In light of the above evidence — an internal
selection procedure that operates disparately against
Blacks and has not been properly validated, and
substantial use of an outside procedure which
selected only whites — we recommend a finding
VA appealed from that decision to the Commission and then to VA's General
Counsel in Washington, D.C. Because VA failed to take final action within
180 days of the filing of her EEOC complaint, Bowie brought this suit
pursuant to 42 U.S.C. § 2000e-16 (c).
Motion To Dismiss
 VA seeks to dismiss the portions of the Complaint dealing with PACE
and Bowie's job performance appraisal. Both aspects of the Complaint
withstand Rule 12(b)(6) onslaught.
As for the former, VA contends Bowie lacks standing because she was not
injured by VA's use of PACE. It says:
1. VA used PACE only to determine which non-VA
employees should be part of the applicant pool.
2. Bowie was not required to take PACE to be
considered for the computer trainee position.
Not so. Viewed in the light most favorable to Bowie, the Complaint
asserts VA used PACE not only to select the group of outside candidates
but also to evaluate their individual qualifications for the post. If in
fact discriminatory (as this Court must assume), PACE would have conveyed
an inflated view of the capabilities of those white candidates — to
the detriment of a black internal applicant such as Bowie. Indeed VA's
use of PACE would result in a distorted comparison of the two applicant
groups even were 710 Test nondiscriminatory.*fn6
Accordingly Bowie has
requisite injury to challenge VA's resort to PACE.*fn7
As for its discriminatory performance evaluation of Bowie, VA
contends she failed to exhaust her administrative remedies by not
including such an assertion in her EEOC charge. That argument cannot
prevail in light of the language of the charge, coupled with the liberal
standards for customary EEOC complaints. As our own Court of Appeals
declared in Jenkins v. Blue Cross Mutual Hospital Insurance, Inc.,
538 F.2d 164, 167 (7th Cir. 1976) (quoting Danner v. Phillips Petroleum
Co., 447 F.2d 159, 162 (5th Cir. 1971)):
The correct rule to follow in construing EEOC charges
for purposes of delineating the proper scope of a
subsequent judicial inquiry is that "the complaint in
the civil action. . . . may properly encompass any . . . .
discrimination like or reasonably related to
the allegations of the charge and growing out of such
Though Bowie's EEOC charge did not in terms identify her performance
evaluation, it did refer to the assertedly discriminatory way in which
"the Agency's promotion policy and selection policy was implemented."
Performance evaluation was one component of the accused policy.
Consequently Bowie's discriminatory job appraisal allegation meets the
"reasonably related" Jenkins test.
 VA also challenges that allegation as untimely because the
performance appraisal was given in December 1977, after which Bowie did
not complain promptly to an EEO counselor (29 C.F.R. § 1613.124
requires resort to counseling within 30 days of a discriminatory event).
But on Bowie's allegations (again viewed in the light most favorable to
her) the discriminatory event occurred not when the appraisal was
rendered but when it was later used to deny her selection as a trainee.
For the present, at least, that forecloses any argument of a time bar.
VA's motion to dismiss is denied.