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FICKS v. WICK

April 6, 1988

SIMA FICKS, Plaintiff,
v.
CHARLES Z. WICK, Defendant


Thomas F. Hogan, District Judge.


The opinion of the court was delivered by: HOGAN

THOMAS F. HOGAN, DISTRICT JUDGE.

 Plaintiff Sima Ficks brought this action claiming discrimination on account of national origin in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-2000e-17 (1982). She sued Charles Z. Wick in his official capacity as Director of the United States Information Agency (USIA), maintaining she was rejected for employment with the agency because she was born in the Union of Soviet Socialist Republics. The case was tried to the Court from December 7-9, 1987, with closing arguments by counsel on December 18, 1987. The Court concludes that the plaintiff failed to carry her burden of showing that the legitimate, nondiscriminatory reason articulated by the government for her nonselection was pretextual. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). Accordingly, the Court shall enter judgment for defendant.

 I. FACTS

 Ficks is, and was on January 17, 1986, when she submitted her employment application, a naturalized citizen of the United States, born in the Soviet Union. She applied for a position as Program Coordinator in the Exhibits Service of the USIA but a native-born United States citizen, Katharine S. Guroff, was selected in February, 1986. Within 30 days of her nonselection, Ficks contacted USIA's Equal Employment Opportunity Office and initiated informal counseling. On April 7, 1986, upon completion of informal counseling and within 15 days of her final interview and receipt of notification from the EEO Counselor of her right to file a formal complaint, Ficks filed a formal complaint alleging discrimination on account of national origin. On July 8, 1986, defendant issued a final agency decision and notice of right to sue within 30 days of receipt of the notice. Ficks filed this action on August 7, 1986, within the time permitted by 42 U.S.C. § 2000e-16(c).

 The Program Coordinator of the Exhibits Service is responsible for coordinating the recruitment, selection, training, and administrative processing of bilingual American guides, who accompany major USIA exhibits to the Soviet Union and Eastern Bloc countries. The exhibits, arranged under bilateral cultural exchange agreements, represent aspects of American life and culture and are quite substantial undertakings, costing millions of dollars. During the 1970s, the USIA regularly sent exhibits, accompanied by American guides, to the Soviet Union.

 As a result of the Soviet invasion of Afghanistan in 1979, the United States cut back on cultural exchanges with the U.S.S.R. and stopped sending exhibits to that country. Relations between the two countries gradually improved and a new cultural exchange agreement was signed in November, 1985; Gregory Guroff, the husband of the person selected for the position in question, was among those negotiating the agreement on behalf of the United States.

 The new cultural exchange agreement reinstated the exhibits program, and the USIA's Exhibits Service promptly began to gear up for an exhibit called "Information U.S.A." and to recruit up to a dozen new employees, including a Program Coordinator. In December, 1985, Richard Suib, Chief of the Exhibits Service, requested a vacancy announcement be prepared for the Program Coordinator position. Suib prepared an initial draft of the announcement and gave it to Gail R. Becker, his subordinate as Project Director and herself a former Program Coordinator. Suib and Becker worked with Shelby Lynn Jarman Weilepp, a USIA personnel management specialist, in filling the vacancy.

 
Incumbent serves on multiple exhibit projects concurrently developing collateral program planning and coordinating the recruitment, selection, training, and programming of bilingual America exhibit guides, specialists, speakers and seminar panels on major USIA exhibitions shown primarily in Eastern Europe and the USSR. Incumbent is responsible for all aspects of administration in relationship to duties.

 The vacancy announcement referred to "X-118 Qualification Requirements" and stated that three years of generalized experience and three years of specialized experience were required. Neither the generalized nor specialized experience requirements referred to knowledge of the exhibits medium. The "special rating factors," which come into play only if five agency employees eligible for promotion apply for the job, include this factor: "knowledge of the principles, concepts, and methodologies involved in the exhibits medium." This factor is one of five assigned equal value in the vacancy announcement.

 The position description is considerably more detailed than the vacancy announcement and under "knowledge required by the position" includes this requirement: "Broad knowledge of the basic principles, concepts, and methodology of the exhibits medium." The position description stated the Program Coordinator would travel within the United States interviewing guide applicants, and "may also travel overseas" with the exhibits. The ability to speak Russian was not required.

 The vacancy announcement was posted on December 31, 1985. The applications were screened by Weilepp, the personnel specialist, and 12 applicants were determined to be "minimally qualified." The names of those applicants were forwarded to Suib, who selected four applicants for interviews, including Ficks, Guroff, Ludmila Foster, and Anne Lowendahl. Becker participated in the interviews as an observer whose comments would be sought later; in fact, her comments were solicited by the selecting official and were a key factor in the selection of Guroff. Lowendahl eventually was selected for another position, that of Guide Recruiter, and Foster, who also was born in the Soviet Union, was not considered for the job when it became apparent during the interview that she was not an appropriate candidate. The only two serious contenders for the job, therefore, were Ficks and Guroff.

 Sima Ficks was born in the Soviet Union and lived there until 1972 when, at age 33, she emigrated first to Israel, then to Italy, and finally to the United States. She has an intimate knowledge of Soviet life and culture as well as the ability to speak Russian and Ukrainian as a native. She also has a working knowledge of Polish. Ficks earned the equivalent of a masters degree from Kiev State University in 1964 in linguistics and methods of teaching foreign languages; her formal education includes study in art and art history in 1964 and 1965, plus three graduate level courses at George Washington University in Washington, D.C., in Russian civilization and literature.

 While she was a student at Kiev State University, Ficks worked part-time at the Exhibit on Advanced Experience in Ukrainian Economy, a permanent exhibit which included several pavilions. She testified that her job was akin to an information specialist, primarily working in the library reviewing current periodicals for new exhibit material. On occasion in the summer she served as an exhibit guide, conducting tours and answering questions, she testified.

 After graduation, Ficks went to work at an advanced school for Air Force engineers, reviewing and translating articles in foreign magazines and journals. She also taught conversational Russian to foreign students at the school. She continued in this job for eight years, until her authorized departure from the Soviet Union.

 Ficks arrived in the United States in September, 1973, and has lived in this country since that time. She became a naturalized United States citizen in June, 1979. Since 1974 she has taught for the Slavic Department and the Continuing Education Program at George Washington University; her courses included Business Russian, Scientific Russian, Readings in the Soviet Press, and the Soviet Union Today. From 1983 to 1985 she was coordinator for a special Soviet Area Studies Program for Government Employees. She has administrative responsibilities for coordinating professors, locating, copying, and distributing materials, and so forth for the Soviet Union Today course. She is an untenured associate professorial lecturer paid from $ 10,000 to $ 12,000 a year.

 In addition, she has worked as a translator, under contract with the Department of State, at about 20 conferences. She also has worked under contract with USIA in two capacities, one translating English text into Russian for America Illustrated magazine, the second for the Exhibits Service (before 1979) translating material, preparing supplementary materials such as vocabularies ...


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