The opinion of the court was delivered by: OBERDORFER
Plaintiff, Constance Minor, brings this suit pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as amended by the Equal Employment Opportunity Act of 1972, alleging employment discrimination
by officials at the Health Services and Mental Health Administration (HSMHA), an agency within the Department of Health, Education and Welfare (HEW).
In particular, plaintiff, then a secretary, alleges that
1. During extensive absences of her immediate supervisor, Dr. Maurice Bender, she successfully performed the duties of Executive Secretary to the Special Projects Committee, one of the several positions held by Dr. Bender, but was not paid equal pay for this equal work;
2. Mr. Donald Carmody, Director of the Office of Special Projects at HSMHA, discriminated against her on the basis of sex when Dr. Bender left the agency by failing to create a job position in the nature of Executive Secretary to the Special Projects Committee for which she could compete;
3. Mr. Carmody and others failed to fulfill their responsibilities under the agency's affirmative action program. In support of her assertion that Carmody had the duty to consider and create, if feasible, a new position in the nature of Executive Secretary, plaintiff cites a Civil Service Commission regulation regarding equal opportunity which states:
The head of each agency shall exercise personal leadership in establishing, maintaining, and carrying out a continuing affirmative action program designed to promote equal opportunity in every aspect of agency personnel policy and practice in the employment, development, advancement, and treatment of employees. Under the terms of this program, an agency shall:
(c) Utilize to the fullest extent the present skills of employees by all means, including the redesigning of jobs where feasible so that tasks not requiring the full utilization of skills of incumbents are concentrated in jobs with lower skill requirements . . . . 5 CFR § 713.203.
4. Plaintiff was subject to reprisal for the filing of an EEO complaint; most of her work was withdrawn within four days after she filed the complaint.
Defendant Joseph Califano, Secretary of the Department of HEW, asserts in defense that
1. HEW could not have discriminated against plaintiff in failing to promote her to the position of Executive Secretary to the Special Projects Committee because this position was merely a duty assigned to a professional series employee, rather than a "job" to which an employee could have been promoted;
2. Although plaintiff may have temporarily performed the duties of Executive Secretary, she did not perform work "equal" to that of a higher paid male employee;
3. Even if there had been a job position of Executive Secretary, it would have been classified at such a high level that plaintiff would have been ineligible to compete for it;
4. Plaintiff has presented no evidence indicating that the decision not to create the job position of Executive Secretary was ...