Complaint dated Aug. 20, 1976. "A discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed. It may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history which has no present legal consequences." United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S. Ct. 1885, 1889 52 L. Ed. 2d 571 (1977).
Since plaintiffs do not contend and present no evidence that either one of them was denied training opportunities, was delegated inferior work assignments or was subjected to working conditions that were in any respect different from those of their male counterparts, the case boils down to whether or not the proof clearly and convincingly shows that the failure to select either plaintiff for the two GS-14 vacancies at issue would have resulted even in the absence of sex discrimination.
All of the DLA's GS-14 positions were filled in accordance with the applicable Civil Service rules and regulations. When such a vacancy arose, as it did six times at Cameron Station during the 1973-76 period, it was advertised. Applicants for the position were then rated according to their formal credentials and their proficiency in job-related functions. Subsequently the top-rated applicants were identified and then interviewed by the selecting official for ultimate selection. This official would have had nothing to do with either the initial ratings of the applicants or the selection of the top group of three to eight applicants from which he was required to make a selection.
The ratings received by plaintiffs in the two instances under scrutiny are consequently of great significance. Notably, neither plaintiff challenged in any way at trial the neutrality or fairness of the ratings she received for any of the vacancies that opened up during the 1973-1976 period.
Vacancy No. 275 had 17 applicants. The male ultimately selected ranked the highest, 96.3 (on a scale of 100). Plaintiff Milton was fifth on the list, in the top five and rated 90. Plaintiff Whelan, discouraged by her lack of success in having sought promotion to several prior vacancies, did not apply. Even if, under International Brotherhood of Teamsters v. United States, 431 U.S. 324, 362-71, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977), the Court must accordingly treat her as a constructive "applicant," the fact remains that plaintiff Whelan would in all likelihood have been rated below the selectee. She had applied for the immediately preceding vacancy and applied for the following one but was rated 88.5 and 88.85, respectively, on those occasions. In sum, the evidence convincingly demonstrates that neither plaintiff was the best qualified for Vacancy No. 275.
Vacancy No. 22 attracted 32 applicants. Both plaintiffs applied: Milton was rated 83.97 and Whelan 88.85. Neither ended up making the top group of five whose ratings ranged between 91.3 and 97.1 the ultimate selectee, a male, rated 96.2. Again, there is clear evidence that neither plaintiff was the best qualified for this position.
No other particularized evidence relating to either vacancy exists that indicates that the applicants' sex played any role in the decisions of the selecting officials. The males chosen were better qualified under the rating system used, and, as previously noted, this system is not being challenged.
Plaintiffs seek to avoid these conclusions by asserting that the defendants should not be allowed to offset the strong inference created by their prima facie case, as strengthened by their statistical evidence. They also point to two occasions when defendants failed to implement the agency's affirmative action program, which incidents plaintiffs maintain substantially bolster their position.
The first of these occurred in September 1974. At that time, Whelan was actually chosen by the selecting official for an open GS-14 position. She was the fourth ranked applicant, but was chosen because of her acknowledged competence and experience and also apparently because she was a woman. The Court accepts the selecting official's testimony that, while Whelan was not the highest qualified applicant, he had chosen her because of his strong belief that some concrete action was needed to comply with the unit's affirmative action program for women. The selection had then come under review by the selecting official's superiors, as is always the case. It passed muster until the highest level was reached. There, the selection was countermanded by the Commanding General who directed that a lateral transfer be made of a GS-14 male from another unit. The General, now retired, did not testify at the trial. Others who were familiar with his decision testified that he had acted on the basis of Ms. Whelan's limited educational background, her lack of field experience,
and the fact that, according to the ratings, she was not the highest qualified. The Court finds from the totality of all the circumstances, particularly the fact that she had been selected by the selecting officer, that this cancellation of Ms. Whelan's selection would not have occurred had she been a male she was fully qualified for the post in every conceivably relevant respect.
The second incident involves assurances given to plaintiffs by the agency which plaintiffs maintain guaranteed them priority consideration for upcoming GS-14 positions. More specifically, each plaintiff received on April 9, 1976, an official resolution of her informal discrimination complaint which stated that "the complainant will be given priority consideration for selection in all future vacancies for which she qualifies." The term "priority consideration" was then defined as follows:
Priority consideration means that within the framework of positive affirmative actions, there will be a diligent effort to have women in every organization, occupation and level. In any area where there is an absence of any class of employee such as minority, woman or other class employee first consideration will be to correcting this absence in line with the DoD goal of "a fully integrated workforce."