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RENATA v. SHAW

June 16, 1981

Renata
v.
SHAW, Plaintiff, v. Daniel J. BOORSTIN, Defendant



The opinion of the court was delivered by: GREENE

This is an action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. ยง 2000e et seq., in which plaintiff alleges that she was denied an appointment to the position of Administrative Librarian (Assistant Chief of the Prints and Photographs Division, a division of the Research Department) at the Library of Congress (Library) as a result of discrimination on account of sex. The issue before the Court is whether defendant's application of a one year time-in-grade requirement to this plaintiff resulted in disparate treatment *fn1" of plaintiff in violation of Title VII.

On September 30, 1976, the Library posted an announcement (Posting 2312) of a vacancy for the position of Administrative Librarian (Assistant Chief of the Prints and Photographs Division). The position was posted as a GS-15 level position, and it required prior service of one year at the GS-14 grade level "or the equivalent." The introductory paragraph of the announcement indicated further that "unless otherwise indicated, an adequate amount of additional experience or training, as appropriate, may be considered in lieu of qualifications specified."

 Plaintiff submitted her written application for the position on October 4, 1976. At that time she was a Bibliographic Specialist *fn2" at the GS-13/5 level, and she had been an employee in the Prints and Photographs Division for more than fourteen years. Five males and one other female also applied.

 John Kuiper, the Chief of the Division and the selecting official, refused to interview plaintiff for the position, claiming an asserted lack of authority to do so because plaintiff had not met the time-in-grade requirement. *fn3" Dale Haworth, one of the male applicants, was subsequently appointed to the position. *fn4"

 I

 To establish a prima facie case of sex discrimination, plaintiff must show

 
that she applied for an available position, for which she was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination.

 Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207, 49 U.S.L.W. 4214 (1981). *fn5" The government argues that plaintiff was not qualified for the position she sought because she had not met the time-in-grade requirement and that, therefore, she has failed to make a prima facie case. The Court rejects this argument on two bases: first, the position was inappropriately posted as a GS-15; *fn6" and second, even if it was properly posted at that level, the government should have considered plaintiff's experience and training in lieu of that requirement or the requirement should have been waived.

 Although there is no direct evidence that the position description was drafted as it was with the specific purpose of discriminating against plaintiff, it is not disputed that (1) plaintiff's supervisors had substantial discretion in preparing position descriptions and in describing the qualifications to be included in the notice of vacancy, and (2) none of the employees in the Prints and Photographs Division occupied a GS-14 position *fn7" at that time.

 The evidence shows that position descriptions are rewritten or revised within the Prints and Photographs Division on the basis of current needs and then sent to the Research Department for review; under the rules and regulations the position description and qualifications for the position of Assistant Chief could have been written so that the position would have been classified at a GS-14 level; and indeed Alan Fern *fn8" could have requested the Classification Office to set the position up as a GS-14/15 ladder. *fn9"

 None of the government's witnesses acknowledged responsibility for deciding that the position would be written at the GS-15 level. Their explanation for so posting the position was that the Chief's position at the time was a GS-16 and that it was usual to classify the Assistant Chief's position one grade below that. However, at the time of trial, the Library was seeking to fill the position of Chief at the GS-15 level, and the grade level to be assigned to the vacant Assistant Chief's position was undecided facts which support plaintiff's contention that the requirement of the time in grade at the GS-14 level was a means of eliminating plaintiff from consideration.

 Even assuming that the requirement of one year at the GS-14 level "or the equivalent" was job-related, plaintiff's evidence makes it clear that she possessed the requisite equivalent background and experience.

 In determining whether an applicant for a position possessed experience equivalent to service for one year at the GS-14 level, the Library refused to consider equivalent federal service, but recognized only service outside the federal government for this purpose. Without deciding the validity of this distinction in the abstract, the Court finds that it was improperly applied here. *fn10"

 The only written document on the subject of time-in-grade requirements *fn11" was "Basic Positions Qualifications Requirements (To be Used as a Guideline)" dated December, 1968, and published by the Personnel Office. That Guideline contains no prohibition on the application of the "or the equivalent" qualifying experience to Library personnel or experience, nor was there in existence at that time any written Library policy statement to the effect that "or the equivalent" qualifying experience was applicable only to applicants from the outside. In short, the refusal of the Personnel Office, Kuiper, and Fern to consider ...


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