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April 21, 1981

COUNTY OF NORTHAMPTON, Martin J. Bechtel, Thomas R. Hahn, James A. Hemstreet, Northampton County Children's Bureau and Nancy R. Haley

The opinion of the court was delivered by: TROUTMAN



 In this employment discrimination action instituted under the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Civil Rights Act of 1871, 42 U.S.C. § 1983, against the County of Northampton, former county commissioners, former county Children's Bureau and its executive director, plaintiff, a black female, alleges that the defendants failed to promote her to the position of Social Worker III on January 1, 1973, because of her race and that defendants promoted two white persons even though neither, in terms of past performance or ability, possessed better qualifications than plaintiff, who seeks reinstatement to her former employment as Social Worker III, back pay and attorneys' fees. In October 1976 the Court granted in part defendants' motion for summary judgment. See Pinckney v. County of Northampton, 433 F. Supp. 373 (E.D.Pa.1976). The Court, sitting without a jury, tried plaintiff's remaining claims in January 1980. The following memorandum shall constitute findings of fact and conclusions of law required by Fed.R.Civ.P. 52.


 Plaintiff properly invoked jurisdiction under 28 U.S.C. § 1331(a) and 1343(4) and 42 U.S.C. § 2000e-5(f)(3). Plaintiff also complied with the jurisdictional prerequisites for a Title VII action by filing charges of discrimination with the Philadelphia district office of the Equal Employment Opportunity Commission in August 1973. The district director thereof issued a determination that reasonable cause existed to believe that a violation of Title VII had been committed. In August 1975 the EEOC issued a notice of Right to Sue letter to plaintiff, who commenced this action within ninety days thereafter. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S. Ct. 1011, 39 L. Ed. 2d 147 (1974).


 From May 1970 through March 1973, the relevant time frame in this action, the individual defendants, Bechtel, Hahn and Hemstreet, were commissioners of defendant Northampton County, a county of the fourth class within the Commonwealth of Pennsylvania. Defendant Children's Bureau had been formed by the county commissioners in 1965 to provide public social services to dependent and delinquent children residing within the county. Since the Commonwealth provided a considerable portion of the funding for the services of the Bureau, the county and Bureau agreed contractually with the Commonwealth to submit to the Department of Public Welfare an annual plan describing the services to be provided during the coming year and a budget estimate therefor. Each year the Department of Public Welfare reviewed these documents, conducted on-site inspections of the agency's programs, and later approved the plans.

 The county commissioners also entered into a contract with the Commonwealth wherein they agreed that the provisions of the Pennsylvania Civil Service Act and the regulations of the Civil Service Commission would apply to employees of the Bureau with certain modifications regarding salary, working hours and fringe benefits. Pursuant thereto, in considering hirings and promotions, the Bureau submitted requests for lists of eligible employees from the Pennsylvania Civil Service Commission and agreed to employ or promote from the list one of the top three names listed. Likewise, in accordance with regulations of the Commonwealth, the commissioners appointed for the Bureau an Advisory Board comprised of lay persons to advise both the commissioners and the Bureau's executive director on agency policies and procedures.

 The commissioners hired defendant Haley, a white woman, and assigned her to the Bureau in September 1965, the agency's first year of existence. She became the first supervisor of caseworkers in the Bethlehem area of the county. In April 1968 the commissioners appointed her as Acting Director of the Bureau. At that time she had no previous managerial experience in such areas as administrative decision making, budgeting or personnel relations. In October of that year the commissioners appointed her as director, a post she held during the entire period of plaintiff's employment.

 From 1970 to 1973 the Bureau experienced rapid growth in terms of the services which it furnished, including those formerly rendered by a private agency, the Children's Aid Society of Northampton County. An equally rapid growth in the number of employees paralleled these developments. In January 1970 the agency staff consisted of the director, two supervisors, thirteen caseworkers and six clerical employees. By December of 1973 the agency staff had grown to include the director, four supervisors, one full-time and one part-time social workers, twenty-two full-time and one part-time caseworkers, two child welfare aides and eleven clerical employees.

 The Bureau employed plaintiff from May 4, 1970, through June 29, 1973, as a Social Worker II. At the time of plaintiff's hire, Haley was the only supervisor at the Bureau. During the employment interview, plaintiff informed Haley that she desired to join the Bureau because the agency's growth afforded her an opportunity to become a supervisor. However, she would not accept the starting annual salary of $ 9,454. To resolve this problem and to facilitate hiring plaintiff, Haley first obtained the approval of the county commissioners to engage plaintiff at an amount higher than the agency's initial starting salary and later from the Department of Public Welfare and the Civil Service Commission of the Commonwealth. After conferring by telephone with the personnel coordinator of the Commission, Haley obtained from another child welfare agency in Lehigh County a letter indicating that an individual with plaintiff's qualifications would start at an annual salary of $ 10,000. Ultimately, the Civil Service Commission and the Department of Public Welfare agreed to a beginning salary for plaintiff of $ 10,432, which, in turn, the county commissioners approved. Plaintiff received notification in April 1970 that she had been awarded a probationary appointment with the Bureau as a Social Worker II and that with satisfactory performance she would be granted regular Civil Service status at the end of her one-year probationary period.

 At the time of hire, plaintiff did not have Civil Service status. Consequently, Haley filed the necessary forms with the Commission, which eventually returned a list containing two names, including plaintiff's, for the position of Social Worker II at the Bureau. The other name on the list had a point factor rating of 100; plaintiff had a rating of 71.43. However, plaintiff's residence within the county allowed her selection despite the inferior score. Eventually plaintiff received her Civil Service certification.

 Plaintiff supervised a number of caseworkers handling protective services. Initially, she worked out of both the Easton and Bethlehem offices of the Bureau. In the summer of 1971 Haley assigned her to the Bethlehem office exclusively. In January of that same year the county hired Barbara Sweitzer, a white woman, as a second Social Worker II and assigned her to the Easton office to supervise caseworkers involved in protective services and working out of that office. She also supervised the caseworkers who did foster care studies and the aide engaged in family day-care services. In October 1971 the county hired Joyce McLaughlin, a white woman, as a third Social Worker II. McLaughlin assumed the supervision in protective services of caseworkers formerly supervised by Sweitzer, who accepted supervision of caseworkers in foster care and adoption. In August 1972 McLaughlin also began supervising employees in the in-take unit, which handled the initial referral of cases to the agency. In June 1972 the county employed Nancy White, a white woman, as another Social Worker II in the Bureau. Originally assigned to institutional and day-care supervisory responsibilities, she later took over Sweitzer's duties. Eventually, all placement services, including foster care, were combined under her supervision. Three months later Sweitzer terminated her employment with the Bureau.

 As a supervisor, plaintiff's duties included overseeing the day-to-day operations of the Bethlehem office and the performance of caseworkers and clerical employees there. However, plaintiff did not prepare the budget for the Bethlehem office but merely informed Haley of the items which she wished to be included in the general agency budget for the following year. Plaintiff did not hire or interview employees; she had no authority to discipline any employee in writing. Plaintiff never formally met as an agency representative with the commissioners and attended an Advisory Board meeting only once at Haley's request to describe services rendered by the agency to the county's Spanish-speaking population. Plaintiff had no authorization to sign purchase orders or to approve bills for payment.

 In March of 1971 due to difficulties in arranging a schedule compatible with her babysitter's, plaintiff approached Haley and asked for permission to arrive later in the morning, to leave earlier in the evening and to skip a lunch hour. Haley informed her that the law required all employers to furnish a meal period for employees. Plaintiff said that, if some arrangement could not be fashioned, she would be required to resign. Haley then secured permission from the chief clerk of the county and, with plaintiff's agreement, placed her on a schedule in which she worked ninety percent of the normal work week. Initially, plaintiff worked every Monday through Friday but less than a full day. Her work week totaled thirty-three hours and forty-five minutes instead of the usual thirty-seven and one-half hours. In January 1972, again to accommodate plaintiff's request for an alteration in working hours because of babysitting problems, Haley allowed plaintiff to work eight hours daily four days a week with Tuesday afternoons off.

 In the fall of 1972, as a result of a suggestion made by the Pennsylvania Department of Public Welfare, Haley decided to create two new positions of Social Worker III in the Bureau. The job description promulgated by the Pennsylvania Civil Service Commission for the position of Social Worker III reads in part as follows:

An employee in this class is assigned a wide range of administrative program responsibilities within an area of social welfare services. Important aspects of the work include responsibility for a constant and continuous review and evaluation of the social service program, standards, needs, and the installation of new or improved programs. While the major emphasis is on supervision, there is also considerable administrative detail involved in the work assignment. Employes serving as administrative assistants in large or complex programs have considerable responsibility for a specific aspect of the overall program. Work of this class is differentiated from the next lower level by the inherent complexity, scope, and magnitude of the social service program. Initiative and independent professional judgment are required in the performance of duties. Work is performed under the general supervision of an administrator who reviews performance and recommendations for conformity with agency and program objectives as well as requirements.

 The Northampton County job description for this position recited as typical duties

1. Supervis(ing) a relatively complex, integrated social service program designed to assist in the social rehabilitation and adjustment of children who are dependent, neglected, emotionally disturbed or delinquent (and)
3. Supervis(ing) the workload of social work and casework staff members and volunteers, and provid(ing) professional advice and assistance on case disposition and the purchase of welfare services.

 Other requirements established by the county for the job included

initiative and independent professional judgment ... in the performance of duties. Work is performed under the general supervision of the department Administrator who reviews performances and recommendations for conformity with agency and program objectives as well as legal requirements. Personal qualifications include a Master's degree in Social Work, and four years of ...

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