The opinion of the court was delivered by: RICHEY
This case is before the Court on remand by the Court of Appeals. Although the Court of Appeals affirmed this Court's decision as to the individual discrimination claim of Luba De Medina and a class claim of discrimination in the promotion of women, it remanded the case as to (1) a class claim of discrimination in hiring, (2) a class claim of retaliation for participation in protected activities, and (3) the individual claim of Rose Kobylinski. For the background of this protracted litigation, see De Medina v. Reinhardt, 222 U.S. App. D.C. 371, 686 F.2d 997, 1000-01 (D.C. Cir.1982). With the express agreement of the parties, the Court has considered these claims on the existing trial record, post-remand briefs, supplemental memoranda, and oral argument. After careful consideration, the Court has decided that it must deny the class claim of retaliation, but it will grant relief on the class claim of discrimination in hiring, and on the individual claim of Rose Kobylinski. This Opinion shall constitute the Court's findings of fact and conclusions of law on these claims.
THE COURT FINDS THAT ROSE KOBYLINSKI WAS DISCRIMINATED AGAINST ON THE BASIS OF HER SEX
Following trial, this Court denied jurisdiction over Rose Kobylinski's claim on the ground that she had failed to file a discrimination charge with the Equal Employment Opportunity Commission ("EEOC") and had thus failed to exhaust her administrative remedies as required by 42 U.S.C. § 2000e-16. The Circuit Court reversed this Court's dismissal, noting that since the trial, "the Supreme Court has decided that the requirement of timely filing is akin to a statute of limitations and is not a jurisdictional prerequisite. . . ." De Medina v. Reinhardt, 686 F.2d at 1012 (citing Zipes v. Trans World Airlines, 455 U.S. 385, 102 S. Ct. 1127, 71 L. Ed. 2d 234 (1982)). The Circuit Court found the Kobylinski complaint so similar to the complaint filed by Josefina Martinez, an intervenor with Ms. Kobylinski, "'that it can fairly be said that no conciliatory purpose would be served by filing separate EEOC charges. '" Id. (quoting Foster v. Gueory, 211 U.S. App. D.C. 89, 655 F.2d 1319, 1322 (D.C.Cir.1981)). Thus, the Court will reach the merits of Ms. Kobylinski's claim.
Ms. Rose Kobylinski, a female naturalized citizen of the United States born in Poland, began working in 1964 as a foreign language broadcaster in the Polish Service of the Voice of America, a component of the United States Information Agency ("Agency"). In June, 1977, the Agency posted a vacancy announcement for a GS-12 writer-editor (radio) position in the Polish Service. At that time Ms. Kobylinski was a GS-11. She held a Bachelor of Arts degree and was experienced in radio broadcasting, as well as writing and journalism. The job description in the vacancy announcement stated that the job included writing weekly features on American Space and other scientific achievements. At that time, there was one Polish Service employee, a male, who occasionally wrote features on American space and other scientific achievements. Ms. Kobylinski complained to the personnel office that the Agency had preselected the male candidate, whom she named, to fill the GS-12 vacancy. Subsequently, the vacancy announcement was withdrawn, and the reposted announcement made no reference to writing features on American space and other scientific achievements. Nevertheless, the male who Ms. Kobylinski had asserted had been preselected for the position was selected to fill it. Ms. Kobylinski did not apply for it because, as she informed officials of the Agency, she felt it would be futile in light of the Agency's preselection.
Ms. Kobylinski's claim is one of disparate treatment. She alleges that the Agency violated Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-16, by discriminating against her on the basis of sex with regard to job promotions. The gravamen of her complaint is that the Agency preselected a male candidate to fill the vacant position. If proven, such preselection, in the form of "tailoring" job qualifications to those of a particular candidate, violates Title VII. E.g. Coble v. Hot Springs School District No. 6, 682 F.2d 721, 728 (8th Cir.1982); Mallard v. Claytor, 471 F. Supp. 16, 22 (D.D.C.1978).
MS. KOBYLINSKI HAS ESTABLISHED A PRIMA FACIE CASE
In order to prevail on a disparate treatment claim, the plaintiff first "has the burden of proving by a preponderance of the evidence a prima facie case of discrimination." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S. Ct. 1089, 1093-94, 67 L. Ed. 2d 207 (1981). A plaintiff establishes a prima facie case by showing:
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973). Of course, "the facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required . . . is not necessarily applicable in every respect in differing factual situations." Id. at 802, n. 13, 93 S. Ct. at 1824, n. 13.
Here the record is clear that Ms. Kobylinski did not apply for the job which she alleges was discriminatorily tailored for male candidates. The Supreme Court has held that a non-applicant may prevail in a disparate treatment case if she meets "the not always easy burden of proving that [she] would have applied for the job had it not been for those [discriminatory] practices." International Brotherhood of Teamsters v. United States, 431 U.S. 324, 367-68, 97 S. Ct. 1843, 1870-71, 52 L. Ed. 2d 396 (1977). In Ms. Kobylinski's case, the Court finds that the Agency had, in fact, preselected a male candidate to fill the GS-12 writer-editor (radio) position in the Polish Service. Ms. Kobylinski's application, therefore, would have been an exercise in futility, despite her qualifications. For this reason, and because the allegedly "targeted" male actually filled the vacant position, Ms. Kobylinski has established her prima facie case.
THE AGENCY CANNOT REBUT MS. KOBYLINSKI'S PRIMA FACIE CASE
Once the plaintiff establishes a prima facie case, the defendant may rebut by producing evidence that someone was preferred over the plaintiff for a legitimate, nondiscriminatory reason. Texas Dept. of Community Affairs, 450 U.S. at 254, 101 S. Ct. at 1094. The defendant need only raise a genuine issue of fact as to whether it discriminated against the plaintiff. Id. at 254-55, 101 S. Ct. at 1094-95. Here the Agency asserts three arguments in rebuttal. All three arguments must fail.
The Agency claims that because Ms. Kobylinski had not applied for the GS-12 position, it had no way to ascertain her interest in the position. This assertion is flatly contradicted by the evidence. It was Ms. Kobylinski who complained to the Agency's personnel office about the "tailored" nature of the vacancy announcement. In light of her complaint and her qualifications, the Agency will not be heard to claim that it did not know about Ms. Kobylinski's interest in the job.
The Agency also asserts that the "tailored" notice was inadvertent. Once Ms. Kobylinski alerted the Agency to the error, the Agency removed the announcement, and then posted one without the "tailored" qualifications. The response to this assertion is two-fold. First, it is the preselection that is discriminatory, not the written content of the vacancy notice. Although the Agency claims that the qualifications for the position did not include writing features on American space and scientific achievements, even after the posting of the neutral vacancy announcement, the originally targeted male candidate was selected to fill the vacancy. Furthermore, the claim of inadvertence is doubtful. This was not the only "preselected" vacancy announcement -- it happened on at least two other occasions. In October, 1979, a vacancy occurred in the Polish Service for a GS-12 writer position. The posted vacancy announcement required experience in writing scripts on economics and other specialized topics. At that time there was only one Polish Service employee with this type of background, and he received the job. Another Polish Service vacancy occurred in 1980, and the announcement ...