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HUDSON v. NAS

March 25, 1993

NAOMI HUDSON, Plaintiff,
v.
NATIONAL ACADEMY OF SCIENCES, INSTITUTE OF MEDICINE, Defendant.



The opinion of the court was delivered by: STANLEY S. HARRIS

 This is a Title VII race discrimination case. See 42 U.S.C. ยง 2000e et seq.1 Plaintiff exhausted her administrative remedies, and a full trial to the Court was held from March 1, 1993, through March 8, 1993. *fn2" This Opinion sets forth the Court's findings of fact and conclusions of law as required by Rule 52(a). *fn3" See Fed. R. Civ. P. 52(a). As was noted by the late Judge Gerhard Gesell in another Title VII case, "the law is clear and the facts control." Fuentes v. National Educ. Ass'n, 752 F. Supp. 487, 487 (D.D.C. 1989), aff'd, 286 U.S. App. D.C. 215, 913 F.2d 981 (D.C. Cir. 1990). Based on the credible evidence presented at trial, the Court finds that defendant did not discriminate against plaintiff nor did it retaliate against her for her protected activity.

 Background

 Plaintiff, who is black, makes both race discrimination and retaliation claims. *fn4" First, she claims that she was denied a promotion to financial specialist both because of her race and in retaliation for protected activity under Title VII. Second, she claims that she was harassed in her position as the Division Secretary/Administrative Assistant (Division Secretary) for the Division of Health Sciences Policy (HSP) because of her race and her participation in protected activity. Third, she alleges that she eventually was terminated from defendant, the National Academy of Sciences (NAS), due to her race and in retaliation for her protected activity.

 The NAS is a private nonprofit corporation organized under a charter granted by Congress and signed by President Lincoln. Its primary business is performing studies, approximately 90% of which are funded by government contracts. These studies are short-term, generally taking from a year to three years to complete, although some produce follow-up work. In almost all cases, the government contract funds both clerical and professional staff on these studies. When the funding for a study expires, all staff on the study, clerical and professional, must find new positions or their employment with NAS terminates. Traditionally, many staffers are able to find positions elsewhere in the NAS, although a substantial number do not continue working at the NAS.

 Each study is assigned to a major unit within the NAS, and is staffed by qualified people within that unit or by qualified people hired from outside the NAS. Accordingly, positions at the NAS are filled in one of two ways: (1) someone from within the unit may be selected without internal posting or external advertising, or (2) someone may be selected after posting the opening within the NAS and advertising in the Washington metropolitan area.

 Plaintiff was employed in clerical positions in various parts of the NAS from August 5, 1974, to May 31, 1991. *fn5" From June of 1981 to June of 1982, plaintiff worked in the Administrative Office under Louis Cranford, the Director of that office. Although her title was Administrative Assistant/Financial Technician (Financial Technician), she was essentially the secretary for that office of three persons (including plaintiff). Her position level was grade 8. *fn6" Subsequently, beginning in November of 1983, plaintiff transferred to the Division of Health Sciences Policy (HSP) in the Institute of Medicine (IOM), a major unit of the NAS. In late February of 1988, Dr. Ruth Bulger became the Director of HSP, thereby becoming plaintiff's supervisor. After the events giving rise to this suit, and effective December 1, 1989, plaintiff transferred from her position as Division Secretary in HSP of the IOM to a project secretary position with the End-Stage Renal Study. She interviewed for this new position, and accepted it when it was offered. This transfer involved a grade level reduction from a permanent grade 9 position to a study-related grade 8 position, but her salary of $ 29,500 remained the same. When funding for this study expired on March 15, 1991, the IOM offered plaintiff temporary assignments until May 31, 1991, to allow her time to secure other employment. Plaintiff had not found other employment within the NAS by May 31 and her employment terminated as of that date.

 Failure To Promote Claim

 Discrimination Claim

 In September of 1988, the NAS advertised two job openings, for newly-created positions 160.010 and 160.011, for financial specialists in the IOM. *fn7" Plaintiff applied orally for these positions to Janet Stoll in the IOM Administrative Office. Plaintiff was interviewed individually by both Stoll and Cranford, but was not selected. The Court finds that plaintiff has failed to prove that she was qualified for the position or to prove that defendant's reasons for her nonselection were pretextual. Therefore, the Court finds that plaintiff has failed to show that defendant intentionally discriminated against plaintiff. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).

 The position description for the financial specialist jobs states that the positions are ranked at professional grade 1. *fn8" According to the description, the financial specialist was to be "responsible for the coordination of all financial planning and record keeping; personnel administration; payroll; space planning, building services needs; and equipment requirements." Pl. Ex. 43. The major responsibilities of this position were to include "monitoring financial statements, allocations to cost centers, and updating daily the IOM's cost center analysis, [and] maintaining an accrual accounting system." Id. In addition, the financial specialist was to assist in drafting budgets, preparing cost projections, and preparing "financial reports to foundations and Government agencies when necessary." Id. Among the qualifications listed were a B.A. degree, or its equivalent, in business administration or a related field, and experience in administrative and financial matters for a major unit. Proficiency in Lotus 1-2-3 for budget and projection preparation was listed as being desirable. Previous experience with the National Research Council, part of the NAS, was also highly desirable. Based on the reliable evidence at trial, the Court finds that the job description reflected the actual duties and necessary qualifications of the financial specialist positions.

 Plaintiff possesses a high school diploma and she completed coursework, including Accounting I and II, at Cortez Peters Business College in Washington, D.C. At the time of her application for the promotion, plaintiff's previous experience had been in clerical/secretarial positions. Plaintiff tries to equate her previous job as Financial Technician in the Administrative Office of the IOM with the qualifications necessary for the financial specialist positions. The credible evidence, however, makes it abundantly clear that the job responsibilities were not equivalent and that it in no way prepared her for the financial specialist positions. As Financial Technician, her job involved reviewing all the IOM vouchers for accuracy and compliance with the policies of the NAS (which amounted to checking to see if the sender was allowed certain expenditures and double-checking the addition). These are duties that most of the secretaries at the NAS are required to do. She also maintained a log of contractual requirements (which means she kept a log of all consultants and their financial statements), and double-checked budget totals. Although some of these responsibilities were part of the position description for financial specialist, this experience does not make plaintiff qualified for that position. In the Financial Technician position she did not prepare budgets; she never went over the budgets with directors; she never kept accrual accounting; she did not prepare the financial reports that went to the government; she did not use computer spreadsheet software. Moreover, the Court credits Cranford's testimony that he was familiar with plaintiff and her work and that she was not qualified for the financial specialist position.

 In addition, and in the alternative, the Court also finds that defendant has demonstrated legitimate, nondiscriminatory reasons (in addition to the fact that plaintiff was not qualified) for hiring the two white persons selected, Lisa Chimento and Luciana Frost. *fn9"


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