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).
 VA seeks to dismiss the portions of the Complaint dealing with PACE
and Bowie's job performance appraisal. Both aspects of the ...