alleged discrimination). In cases involving private employers, a claim of repeated failure to promote has been considered a continuing violation. See Mobley v. Acme Markets, 473 F. Supp. 851 (D.Md.1979); Corbin v. Pan American World Airways, Inc., 432 F. Supp. 939 (N.D.Cal.1977).
In Ettinger v. Johnson, 518 F.2d 648, 651-52 (3d Cir. 1975), the Third Circuit noted that the anti-discrimination requirements applicable to the federal government through 42 U.S.C. § 2000e-16(c) mirror those applicable to private employers governed by the other provisions of Title VII, 42 U.S.C. § 2000e, et. seq. Accord, Bundy v. Jackson, 205 U.S. App. D.C. 444, 641 F.2d 934 (D.C.Cir.1981). In Guilday v. Department of Justice, 451 F. Supp. 717, 723 (D.Del.1978), a claim of repeated failure to promote was held to be a continuing violation under 42 U.S.C. § 2000e-16(c). Accord, Myles v. Schlesinger, 436 F. Supp. 8 (E.D.Pa.1976); Henry v. Schlesinger, 407 F. Supp. 1179 (E.D.Pa.1976).
Thus, it appears clear that where the plaintiff claims a continuing pattern of discrimination in retaliation and the acts alleged to be a part of that pattern of retaliation the plaintiff need not file further administrative charges as to each act that is alleged to be part of the continuing retaliatory discrimination against the plaintiff. The defendant contends that the plaintiff should have filed a discrimination charge each time she was rejected for a position in order to present evidence regarding that position at trial. This approach would hinder both administrative and judicial economy. If the Court adopted the defendant's characterization of the "exercise of administrative remedies" requirement of Title VII, plaintiffs would need to file either a multitude of administrative charges or a multitude of law suits. Neither result would enhance the federal statutory scheme for combating discrimination in employment, particularly in cases involving retaliatory discrimination.
The plaintiff filed her charge in timely fashion in 1976. She contended then, as she did at trial, that her applications for other positions were rejected in retaliation for her having filed an earlier charge of gender and religious discrimination. The post-1976 application rejections are closely related to this charge. Plaintiff has therefore alleged a continuing violation of 42 U.S.C. § 2000e-16(c). Evidence concerning her job applications with EDA after 1976 were thus properly admissible at trial.
In order to prevail in a suit brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16(c), the plaintiff in this case had to first establish a prima facie case of discrimination or retaliation. If the plaintiff sets forth such a prima facie case, the defendant must "articulate some legitimate, non-discriminatory reason" for its decision(s) adverse to the plaintiff.
Once the defendant proceeds with its burden of production to rebut plaintiff's prima facie case, the plaintiff, who has the burden to convince the trier of fact, by a preponderance of the evidence, may then rebut the defendants' proffered reason for its decision by showing that it was merely pretext for discrimination or retaliation. McDonnell Douglas v. Green, 411 U.S. 792, 800-02, 93 S. Ct. 1817, 1823-24, 36 L. Ed. 2d 668 (1973). Though McDonnell Douglas set forth this three-part procedure of shifting production burdens in a Title VII race discrimination case, the McDonnell Douglas approach is equally applicable to a gender discrimination claim. See Kunda v. Muhlenberg College, 621 F.2d 532, 541 (3rd Cir. 1980); Bryant v. International Schools Services, Inc., 675 F.2d 562, 571 (1982) and to a claim of retaliation for protected Title VII activity, see Womack v. Munson, 619 F.2d 1292, 1296 (8th Cir. 1980); Aguirre v. Chula Vista Sanitary Service, 542 F.2d 779, 781 (9th Cir. 1976); Hochstadt v. Worcester Foundation, 425 F. Supp. 318, 324 (D.Mass) aff'd, 545 F.2d 222 (1st Cir. 1976).
Although discrimination cases can be usefully analyzed in terms of the three-phase framework set forth in McDonnell Douglas v. Green, supra, "there is no requirement that the evidence be introduced in such a compartmentalized form." Worthy v. United States Steel Corporation, 616 F.2d 698, 701 (3rd Cir. 1980). Plaintiff's evidence relevant to the question of pretext can be presented as part of the initial evidence going to the prima facie case itself or it may be developed during the other party's case in chief, such as by cross-examination. Id. at 701; Whack v. Peabody & Wind Engineering Co., 595 F.2d 190, 193 (3rd Cir. 1979). The plaintiff, however, always has the burden of persuasion. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254-256, 101 S. Ct. 1089, 1094-95, 67 L. Ed. 2d 207 (1981).
In this case, the defendant has set forth a host of reasons for the personnel decisions which resulted in someone other than the plaintiff obtaining the positions applied for by the plaintiff. For all positions for which plaintiff applied, she was either ineligible for the job because she lacked a requisite qualification or, in connection with the jobs where she possessed the requisite qualifications, better qualified people were selected for the positions. As heretofore stated, the Court finds that defendant, for reasons that were not discriminatory or retaliatory, chose a better qualified person for each of the positions. Plaintiff failed to carry her burden of convincing this Court, by a preponderance of the evidence, that she was discriminated against because of her gender or her religion or that she had been retaliated against.
Plaintiff also alleged that EDA failed to comply with the terms of the adjustment of November 13, 1974. The Court finds, on the basis of the evidence presented at trial, that EDA substantially complied with the adjustment. Ms. Beckler's supervisors dealt with her in a sensitive and non-adversarial manner. She was given due consideration for selection to all the positions for which she applied. Her supervisors permitted her to engage in tasks and training activities designed to afford her the opportunity to become qualified for better positions. The in-house administrative files for the employees of the EDA Atlantic Regional Office were revised in accordance with the terms of the adjustment. Ms. Beckler was given adequate supervision and feedback by her employer. It is unclear whether Ms. Beckler's position description was corrected as required by the informal adjustment. However, there is no evidence which suggests that she has in any way been harmed by any delays in correcting and keeping current her position description. Furthermore, there is absolutely no evidence in this record that any failure to correct the position description resulted from retaliation or from gender or race discrimination.
Plaintiff also made a claim pursuant to the Equal Pay Act in this litigation. Under the Equal Pay Act, 29 U.S.C. § 206(d), the plaintiff must show that her job required substantially equal skill, effort and responsibility in comparison to jobs performed by higher paid male employees. The burden then shifts to the defendant to prove that the wage differential is justified under one or more of this section's four exceptions: a seniority system, a system measuring earning by quantity or quality of production, or a differential based on any factor other than gender. See Corning Glass Works v. Brennan, 417 U.S. 188, 94 S. Ct. 2223, 41 L. Ed. 2d 1 (1974); Angelo v. Bacharach Instrument Co., 555 F.2d 1164 (3rd Cir. 1977).
The Court finds that the plaintiff failed to carry her burden that her duties were substantially equal to those at EDA earning higher salaries and classified in higher government service grades. In reaching this finding, the Court recognizes that it is job content, rather than job classification or job description, which controls. Usery v. Allegheny County, 544 F.2d 148, 153-54 (3rd Cir. 1976). Though she routinely sought to do tasks more challenging than typing and other purely clerical matters, she was not performing the same work as those at EDA who were in higher grades and receiving higher salaries. For the reasons heretofore set forth, the Court finds that the plaintiff has not shown a violation of either Title VII or the Equal Pay Act. An appropriate order will be accordingly entered.
AND NOW, this 25 day of June, 1982, trial having been held in this matter before the Court, sitting without a jury, on February 16, 17, 18 and 19, 1982, for the reasons set forth in this Court's Memorandum of June 25th, 1982,
IT IS HEREBY ORDERED: JUDGMENT is ENTERED in favor of defendant Juanita Kreps, Secretary of the Department of Commerce, and against plaintiff Sandra Beckler.
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