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March 21, 1986

MONA G. GOLD, Plaintiff,
GALLAUDET COLLEGE, et al., Defendants

Joyce Hens Green, J.

The opinion of the court was delivered by: GREEN


 Plaintiff Mona G. Gold brought this suit against Gallaudet College and certain named individuals, alleging that defendants engaged in employment discrimination and retaliation against her because of her sex (female) and religion (Jewish), in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (1982). *fn1" Plaintiff's claims arise from defendant Dr. Donald V. Torr's decision to promote defendant Daniel Skripkar to director of the College's Arts and Photography Services ("APS") in August, 1982. Plaintiff contends that she was qualified for the position but was passed over because of her sex and religion, and that, following her protest of Skripkar's promotion and the manner in which it was handled, she was subjected to a series of adverse employment actions at the hands of Skripkar, Torr and other College officials. After careful review of the evidence adduced at a seven-day bench trial, the Court finds that defendants did not act on the basis of any discriminatory animus towards plaintiff in failing to promote her to director of APS, nor did defendants engage in any unlawful retaliation against her following the promotion of Skripkar to that position. Judgment will therefore be entered in favor of the defendants.

 I. Background

 Gallaudet is a private liberal arts college for deaf students, incorporated by an act of Congress in 1857. In addition to the college facilities, Gallaudet maintains facilities for the education of hearing-impaired secondary school and elementary school students through the Model Secondary School for the Deaf ("MSSD") and the Kendall Demonstration Elementary School ("KDES"). Plaintiff, a 1969 graduate of the University of Maryland, was hired as a graphic artist by Gallaudet in 1971 and was assigned, along with all but one of the other graphic artists, to an open space in MSSD called the graphics area.

  From 1973 through 1979, plaintiff's supervisor was Diane Adams. In her earliest evaluations of plaintiff's work, Adams graded Gold as "outstanding" in 1975 and 1976, indicating that plaintiff's potential was "exceptional" and that she "possessed supervisory ability." DX G, H. *fn2" Beginning in 1977, however, and continuing through 1978 and 1979, Adams dropped plaintiff's performance rating from "outstanding" to "above average." She also lowered her estimation of plaintiff's potential from "exceptional" to "above average," and failed to check the box indicating that plaintiff possessed "supervisory ability." Significantly, these evaluations followed a period from October, 1975 through October, 1976 when plaintiff actually exercised supervisory authority as Adams' assistant; during this time, plaintiff managed the day-to-day operations of the art photography print shop while Adams devoted much of her time to working with architects designing a new building. In her May, 1977 evaluation, the first to follow plaintiff's tenure as her assistant, Adams wrote that Gold had "somewhat 'peaked out,'" and that her "frustrations [had] interfered with her overall performance." DX I.

 In 1979, Gallaudet merged several departments, including the Department of Art and Photography, into a single unit called College Educational Resources ("CER"). CER was the brainchild of defendant Dr. Donald Torr, who was director of the College's Office of Educational Technology. The reorganization was designed to eliminate the duplication and overlap of certain educational technology services offered at the College, MSSD and KDES. Following the reorganization, Torr became director of CER, a position he held until 1984 when CER was abolished in another major reorganization at Gallaudet. As part of the reorganization itself, Torr selected William Stevens as interim director of the Department of Art and Photography (which was subsequently renamed Department of Art and Photographic Services or "APS"). At the time of his selection, Stevens was director of the Printing Department. Shortly thereafter, Torr promoted William Lewis, then a graphic artist in the department, to director of the graphic artists, reporting to Stevens. In September, 1979 Torr made Lewis director of APS in his own right; thereafter, Lewis reported directly to Torr.

 Torr testified that in promoting Lewis, he did not post notice that the position was available, nor did he interview any applicants for the job. He explained that in his view, section 10:17:00 of the College's Administration and Operations Manual does not require job posting or interviewing when a position is filled through intra-departmental promotions; such procedures are required, Torr stated, only when a position is filled through recruitment from outside a given department. Section 10:17:00 was officially promulgated in February, 1977. Under the heading of "Recruitment," it provides for the preparation and posting of job descriptions, stating that "staff positions . . . must be posted for a minimum of three (3) days before a job offer can be extended to anyone and five (5) days before a job offer can be extended to anyone other than a Gallaudet employee." PX 3. Under the heading "Promotions," the regulation provides:

The department with a job opening should consider its own people before posting the position. If a supervisor has an employee who meets the qualifications, the Personnel Requisition form should be completed and sent to the Personnel Department with the name of the employee inserted in the space provided on the requisition. Positions that are to be filled through approved promotions will not be advertised. All promotions must be cleared through the Personnel Office and EEO Officer.

 (Emphasis supplied.) An earlier regulation, section 10:05:00, issued in December, 1971, required posting of all job vacancies, whether filled through intra-department promotion or outside recruitment, PX 8. Torr testified that he understood the 1977 regulation to have superseded the earlier 1971 regulation. This understanding was subsequently confirmed by defendant LaVarne Hines, Director of Gallaudet's Administrative and Community Services and formerly the College's Director of Equal Opportunity, and by Denise Sullivan, Director of Gallaudet's Department of Human Resources. *fn3"

 Lewis served as director of APS for ten months and in that capacity prepared plaintiff's 1980 evaluation. In that evaluation, he lowered her performance rating from "above average" to "satisfactory." He testified at trial that, in his opinion, Diane Adams had indulged a system of grade inflation, not only when rating plaintiff but for the entire staff, and that as part of his efforts to promote APS as an independent and commercially viable entity, he felt it was necessary to adjust the rating scale. He attached an explanation to that effect, along with written comments on plaintiff's work, to the 1980 evaluation. DX A. He further testified that while plaintiff could have performed the director's job, he was not particularly impressed with her work; in his opinion, she satisfied the normal requirements of her job, but, compared to the other artists in the group, he would rate her towards the low end in drawing and illustration skills, and in artistic ability generally. Indeed, he stated that, notwithstanding his adjustment of the rating system, he gave several other artists in the group higher ratings than plaintiff received. Lewis left Gallaudet in the summer of 1980 and recommended John Scott as his replacement. As Scott was not an APS employee, Torr posted the position and interviewed one other applicant in addition to Scott before appointing him director. Plaintiff did not apply for the position.

 Plaintiff testified that initially at least her responsibilities increased under Scott. However, in January, 1981 he wrote her a memorandum expressing dissatisfaction with her work habits. DX F. In particular, he admonished her for her low productivity and her excessive use of the telephone during work hours, a criticism that Diane Adams had previously made in her 1979 evaluation of plaintiff. See DX K. In his memorandum, Scott stated that he would not forward a copy of the document to the Personnel Office immediately, but would instead monitor plaintiff's work closely and would forward a copy only if there were no improvement in her performance. Plaintiff responded with a lengthy memorandum of her own in which she accepted responsibility for the excessive telephone use, but took issue with Scott's charge of low productivity, his lack of firsthand knowledge of her work, his criticism of her decision to take work home with her, and his handling of the matter in general. The two met and discussed their differences and Scott agreed, as a conciliatory gesture, not to forward a copy of his memorandum to the Personnel Office. At the trial, plaintiff characterized Scott's letter to her as an act of sexual discrimination; Scott viewed it as a legitimate exercise of his supervisory authority. Plaintiff also testified that she did not consider Diane Adams' inclusion of a similar criticism in plaintiff's 1977 performance evaluation to be an act of discrimination.

 Shortly thereafter, at her own request, plaintiff was transferred to the Learning Center, a separate building at the College. There, in addition to her graphic arts projects, she served as a liaison between faculty and students and the art department, explaining APS services and equipment to interested persons. The assignment was made in response to pressure from administration officials, who had requested that Torr locate a member of APS at the Learning Center. Torr testified that he and Scott had resisted the suggestion, viewing it as a waste of APS' already over-extended resources, and had proposed hiring a junior graphics artist at a salary of around $10,000 to fill the position. When that proposal failed to gain Personnel Office approval, Scott recommended to Torr that plaintiff be transferred. Plaintiff was first assigned to the open area at the Center, but she objected to this location, citing the lack of security for her equipment. Scott rearranged the room assignments of several photographers and placed plaintiff in an office with one of them, Chun Louie.

 While at the Learning Center, plaintiff filed a written grievance with Scott in June, 1982, complaining of sexual harassment by Charles Schoup, one of the photographers located at the Center. Plaintiff testified at trial that Scott investigated her complaint and put an immediate stop to Schoup's behavior. She nevertheless pointed to the episode as an act of sexual discrimination on the part of ...

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