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BOWIE v. VETERANS ADMINISTRATION

June 9, 1983

DIANE BOWIE, PLAINTIFF,
v.
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.

Complaint Allegations*fn2

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 white.

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 Specialist Aptitude 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
   of discrimination.

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

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


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