Full opinion text
MEMORANDUM OPINION WATKINS, Senior District Judge. Introduction Plaintiff, Kathleen J. Kralowec, brings this action pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., alleging by an amended complaint that Prince George’s County, Maryland (hereinafter the County), discriminated against her in her employment on the basis of her sex. Plaintiff charges that the County illegally denied her a promotion because of her sex and then terminated her employment in retaliation for her filing a complaint of employment discrimination with the County Attorney. A trial de novo was held in April, 1978 on the merits of this case. After a careful review of the entire record before the Court, judgment will be entered in favor of the defendant. This opinion will constitute the Court’s findings of fact and conclusions of law pursuant to F.R.Civ.P. 52. Plaintiff, an urban planner, was employed in the Model Cities Program of the County’s Department of Human Resources and Community Development from September 1, 1969 until her termination on October 27, 1972. In November, 1971, Thomas Cassidy left the grade 30 position of Chief of Planning and Evaluation for the Model Cities Program to become acting Assistant Director for the Department of Human Resources and Community Development. Tr. 573. In December, 1971, Libeuwa Gregory Odum was appointed to the position of Chief of Planning and Evaluation in an acting capacity. Plaintiff’s Trial Exhibit 49a. The County’s Personnel Office posted an announcement of promotional opportunity regarding the permanent position of Chief of Planning and Evaluation in April, 1972. Only the acting incumbent, Odum, and plaintiff, who then held a grade 27 position, submitted applications for promotion to this permanent position. On May 22, 1972 Odum was appointed to this position. Plaintiff’s Trial Exhibit 49b. The Assistant Director for the Model Cities Program, Obi S. Ogene, notified plaintiff of this decision by a letter dated June 6, 1972, citing Odum’s “better administrative experience” as the reason for the selection. Plaintiff’s Trial Exhibit 10. Pursuant to procedures specified in the County’s Merit System Ordinance, plaintiff filed a complaint with the County Attorney, Walter H. Mahoney, on July 1, 1972 against both Obi S. Ogene and his superiors in the Department of Human Resources and Community Development under the “Prohibited Discrimination” clause, § 13-107. Plaintiff charged as follows: I was recently (June 6, 1972) denied a promotion by Mr. Ogene in favor of a male, fellow countryman of Mr. Ogene’s, who is not as well qualified for the position nor as specifically qualified for the position as myself. I further charge, against Mr. Ogene, untoward harassment throughout our association as a result of prejudicial discrimination against me due to race, sex and national origin. The Prince George’s County Personnel Department is held here as a contributory correspondent in the matter of sex discrimination. Plaintiff’s Trial Exhibit 11. While the above-quoted complaint was pending, plaintiff directed a request by a memorandum dated September 12, 1972 to Clayton McDowell, Acting Director of the Office of Personnel, seeking a position audit of her position as Housing and Neighborhood Planner in order to accomplish the upgrading of that position from a grade 27 to a grade 30. Plaintiff’s Trial Exhibit 35. This request was never acted upon, apparently because of subsequent events affecting plaintiff’s employment status. Tr. 368. On October 5, 1972 plaintiff testified before the County Attorney in support of her pending discrimination complaint. Tr. 369. On October 6, 1972 plaintiff received a memorandum dated October 2, 1972 from Obi S. Ogene, recommending her termination as of October 27, 1972. Tr. 369; Defendant’s Trial Exhibit 4. The reasons cited for the proposed termination were insubordination and unsatisfactory performance, absence without leave, knowingly giving false statements to supervisor, violation of county ordinances, administrative regulations, and department rules, and consistently offensive conduct to superiors and other Model Cities members. Defendant’s Trial Exhibit 4. The memorandum directed that plaintiff file her response to each charge by the close of business October 5, 1972 [one day prior to plaintiff’s receipt of these charges] and promised notice of Ogene’s final action by the close of business on October 6, 1972. Id. at 5. By an October 12, 1972 memorandum to Clodus Smith, Director of the Department of Human Resources and Community Development, Ogene and others, plaintiff summarized her response to the charges made in Ogene’s notice of termination and indicated that a more detailed reply would follow shortly. Plaintiff’s full reply was sent to Obi S. Ogene by a memorandum dated October 26, 1972. In the interim, however, Ogene gave plaintiff final notice of her termination effective October 27,1972. Defendant’s Trial Exhibit 3 (dated October 13, 1972). The same memorandum notified plaintiff that she had five days to appeal this termination action. On October 10,1972 plaintiff supplemented her complaint filed with the County Attorney by adding an allegation of retaliatory firing. She also appealed her discharge to the Prince George’s County Personnel Board. The Personnel Board convened to consider the appeal on November 13, 1972, but as the County Attorney had not yet reported his findings on plaintiff’s complaint, the Personnel Board deferred action to await his decision. The Board directed that plaintiff be restored to pay in a non-duty administrative leave status, retroactive to October 27, 1972, noting that the Department of Human Resources and Cornmunity Development could reconsider appropriate personnel action following the County Attorney’s determination. Plaintiff’s Trial Exhibit 17 at 2. The County Attorney issued his decision on December 29, 1972. He found no discrimination against plaintiff in her failure to be promoted. He did, however, find fault with the procedures used to select Odum as Chief of Planning and Evaluation, and directed that Odum’s appointment be revoked and the selection of the Chief be made by the Director of Human Resources and Community Development without consultation with Ogene. The County Attorney did not decide the retaliatory firing issue, leaving that determination to the Personnel Board. Plaintiff appealed the County Attorney’s decision to the Personnel Board. By letter dated February 1, 1973, Ogene advised plaintiff that the original termination charges against her were reinstituted. She appealed this termination action on February 5, 1973. The Personnel Board, in 31 hearing sessions between May 16, 1973 and May 20, 1974, held a de novo trial on the discrimination complaint and also considered the dismissal issue. Plaintiff, Ogene, Odum, and the Department of Human Resources and Community Development were parties to the proceedings. The Personnel Board issued its decision on November 15, 1974. Its findings on the promotion issue state, inter alia : [A]ctions of offensive conduct on behalf of Appellant Kralowec so cloud the issue of discrimination on the basis of sex as to prohibit a clear finding that the County’s action was, indeed, the result of such discrimination and not an action unrelated to her sex but reflective of Appellant Kralowec’s past behavior. The Personnel Board, therefore, concludes only that Appellant Kralowec may have been subject to elements of prohibited discrimination. However, the issue of discrimination on the basis of sex notwithstanding, the Personnel Board concludes that presented evidence failed to demonstrate that Appellant Kralowec possessed, appropriate temperment [sic] and supervisory ability to have been selected for the subject position. The Board, therefore, could not find that had it not been for alleged discrimination, Appellant Kralowec would have been selected to fill the position of Chief, Planning and Evaluation, Model Cities Program. Plaintiff’s Trial Exhibit 17, at 22 (emphasis in original). With respect to the dismissal, the Personnel Board concluded that “the termination action of Appellant Kralowec may be, in part, characterized as harassment and a retaliatory act resulting from the filing of a complaint of discrimination.” Plaintiff’s Trial Exhibit 17, at 30. The Board directed reinstatement of the plaintiff with full back pay, an official reprimand of plaintiff, forfeiture of 20 days annual leave, removal of Odum from the contested position, and re-advertising of the position with selection of the new Chief to be made by the Director of the Department of Human Resources and Community Development, priority consideration for plaintiff for the Chief of Planning and Evaluation position or any grade 30 vacancy for which she was qualified, and steps by the County to implement affirmative action. The County refused to comply with the Personnel Board’s directives and appealed the decision to the Circuit Court for Prince George’s County, Maryland. That court, in an opinion issued October 15,1975, reversed the Personnel Board. Prince George’s County, Maryland v. Kralowec, Law No. 58,918 (P.G.Cty.Cir.Ct. October 15, 1975), Defendant’s Exhibit No. 1. The circuit court determined that the Board was without power to consider de novo the discrimination complaint, and that the Board’s jurisdiction was limited to a consideration of whether the County Attorney’s decision was clearly erroneous. The circuit court found substantial basis for the County Attorney’s determination of no discrimination and therefore reinstated that finding. Defendant’s Trial Exhibit 1. As to the claim of retaliatory firing, the circuit court stated: Whether or not the other charges were dismissed, it is manifest that the charges sustained by the Board would be more than sufficient to satisfy a reasonable person beyond all doubt that the Personnel Officer was not in error in discharging the employee. The action of the Personnel Board in reinstating the employee was capricious and an abuse of discretion and accordingly should be reversed. The action of the Personnel Officer in terminating Kralowec’s employment should stand. Id. at 10. The Court of Special Appeals affirmed the circuit court’s decision, Kralowec v. Prince George’s County, Maryland, No. 1121 (Ct.Spec.App. August 27, 1976)' (Defendant’s Exhibit No. 2). The Court of Appeals of Maryland and the United States Supreme Court denied certiorari. 278 Md. 726 (1976); 430 U.S. 973, 97 S.Ct. 1662, 52 L.Ed.2d 367 (1977). On June 1, 1973 plaintiff filed a complaint with the Equal Employment Opportunity Commission (EEOC), which issued a right to sue letter on September 23, 1974. Plaintiff filed an action in this Court on December 18, 1974 and also moved for a preliminary injunction. This Court denied the motion for preliminary injunction following three days of hearings in February, 1975 during which extensive testimony was produced. Plaintiff later renewed her motion for a preliminary injunction. A second hearing was held in March, 1976, where the Court heard additional testimony and again refused to grant the injunction. At the trial on the merits the parties stipulated that the testimony produced at the two hearings on the motion for a preliminary injunction would be incorporated into the trial record. Tr. 2-4. Collateral Estoppel Issue Several issues relevant to this Court’s determination of the instant case have already been considered by state and local administrative and judicial forums. This Court must therefore determine what effect the prior state and local proceedings should have on the instant suit. In Batiste v. Furnco Construction Co., 503 F.2d 447 (7 Cir. 1974), cert. denied, 420 U.S. 928, 95 S.Ct. 1127, 43 L.Ed.2d 399 (1975), plaintiffs brought a complaint before the Illinois Fair Employment Practices Commission, which dismissed the complaint. Then plaintiffs brought a Title VII claim in federal district court. The Seventh Circuit refused to apply the doctrine of election of remedies or res judicata to a Title VII action where a plaintiff had previously litigated his or her charges to final adjudication in a state proceeding. The Seventh Circuit stated: There is a strong Congressional policy that plaintiffs not be deprived of their right to resort to the federal courts for adjudication of their federal claims under Title VII.... It is also apparent that if federal actions are barred by the application of election of remedies and res judicata, then the statutory scheme of deferral to state proceedings will be frustrated by requiring that the plaintiff, who desired to bring an action in federal court, first commence state proceedings but abandon them quickly before an adjudication is made. ... It has been determined that the Congressional policies embodied in Title VII require that res judicata not be applied to state adjudications. Cooper [v. Philip Morris, Inc., 464 F.2d 9 (6 Cir. 1972)]; Voutsis v. Union Carbide Corporation, 452 F.2d 889 (2d Cir. 1971) and Young v. South Side Packing Company, 369 F.Supp. 59 (E.D.Wis.1973). 503 F.2d at 450. By its terms, the holding in Batiste applies to all prior state “adjudications.” Although on its facts Batiste only applies to prior state administrative agency decisions, Batiste is not limited to its facts, either by the court itself or by subsequent case law. With a single exception, all of the federal courts which have considered the res judicata or collateral estoppel issue in Title VII cases have refused to apply those doctrines to prior state court opinions. Gunther v. Iowa State Men’s Reformatory, 612 F.2d 1079 (8 Cir. 1980), cert. denied, 446 U.S. 966, 100 S.Ct. 2942, 64 L.Ed.2d 825 (1980); Smouse v. General Electric Co., 626 F.2d 333 (3 Cir. 1980) (per curiam); Kremer v. Chemical Construction Corp., 464 F.Supp. 468 (S.D.N.Y.1978), reconsidered and dismissed, 477 F.Supp. 587 (S.D.N.Y.1979) (dismissal mandated by Second Circuit’s subsequent decision in Sinicropi v. Nassau County, 601 F.2d 60 at 62 (2 Cir. 1979)), dismissal aff’d, 623 F.2d 786 (2 Cir. 1980) (Sinicropi applied retroactively); Nickel v. Highway Industries, Inc., 441 F.Supp. 477 (W.D.Wis.1977); Gilinsky v. Columbia University, 440 F.Supp. 1120 (S.D.N.Y.1977); Al-Hamdani v. State University of New York, 438 F.Supp. 299 (W.D.N.Y.1977); Beck v. Mather, 417 F.Supp. 648 (W.D.Va.1976); Benneci v. Dept. of Labor, 388 F.Supp. 1080 (S.D.N.Y.1975); Young v. South Side Packing Co., 369 F.Supp. 59 (E.D.Wis.1973). The lone exception to this line of authority is the Second Circuit’s decision in Sinicropi v. Nassau County, 601 F.2d 60 (2 Cir. 1979) (per curiam), cert. denied, 449 U.S. 983, 100 S.Ct. 488, 62 L.Ed.2d 411 (1979). In Sinicropi the Second Circuit held that res judicata effect should be given to state court proceedings in subsequent Title VII actions. The Second Circuit relied on its previous decision in Mitchell v. National Broadcasting Co., 553 F.2d 265 (2 Cir. 1977), in which it held that res judicata effect must be given to state court proceedings in a federal discrimination action brought under 42 U.S.C. § 1981. In a per curiam opinion, the Sinieropi court perfunctorily stated that it saw “no reason to distinguish between section 1981 and Title VII for res judicata purposes.” 601 F.2d at 62. The Eighth Circuit strongly disputed the Sinieropi court’s conclusion. Gunther v. Iowa State Men's Reformatory, 612 F.2d 1079 (8 Cir. 1980). In Gunther the Eighth Circuit stated: [T]here are several bases for distinguishing between Section 1981 and Title VII with regard to the application of res judicata. . .. . . . [T]he unique statutory scheme of Title VII supports the proposition that res judicata and collateral estoppel should not be applied. Title VIPs requirement of first, deferring to state remedies, 42 U.S.C. § 2000e-5(c), would be frustrated by applying a bar to federal actions because a state court had decided on appeal from a state agency decision. Batiste v. Furnco Constr. Co., supra, 503 F.2d at 450. Further, unlike other civil rights statutes, Title VII clearly provides for a de novo hearing in federal court. Chandler v. Roudebush, 425 U.S. 840, 844-45, 96 S.Ct. 1949, 1951-1952, 48 L.Ed.2d 416 (1976). The language of Title VII does not indicate Congress intended to limit this provision by giving res judicata or collateral estoppel effect to state proceedings and we would have reservations in judicially creating such a limitation. See Benneci v. Department of Labor, 388 F.Supp. 1080, 1082 (S.D.N.Y.1975). Gunther, 612 F.2d at 1084 n.6. While thus questioning the holding in Sinicropi, the Eighth Circuit in Gunther did not decide the precise question before the Sinicropi court. In Sinicropi the plaintiff had appealed the state administrative decision to the state court system. The Second Circuit’s holding on the res judicata effect of state court decisions was limited to that situation. In Gunther, the plaintiff had won at the state administrative level and appeared in state court proceedings only to respond to defendant’s appeal. The Eighth Circuit in Gunther based its decision on this distinction between Sinicropi and the case before it, holding that no res judicata effect would be accorded where the plaintiff did not seek state court review, but was forced to defend by appellant’s appeal. 612 F.2d at 1083. In the ease at bar, plaintiff herself appealed the Personnel Board’s decision to the state court. Therefore, this Court is squarely confronted with the question of whether to follow the Second Circuit’s per curiam opinion in Sinicropi, and thus to give res judicata effect to the state court decisions here in issue. This Court declines to do so. As the discussions in both the Batiste and Gunther decisions aptly demonstrate, such a decision would frustrate the policies underlying the Title VII statutory scheme. Gunther, 612 F.2d at 1084 n.6; Batiste, 503 F.2d at 450. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 60, 94 S.Ct. 1011, 1025, 39 L.Ed.2d 147 (1974). In the absence of guidance from the Supreme Court or the Fourth Circuit, this Court will follow the better-reasoned authority exemplified by Batiste and Gunther. Although this Court does not accord the state court decisions res judicata or collateral estoppel effect, this Court is permitted to consider the record of the state administrative or court proceedings as evidence in the federal suit. Smouse, 626 F.2d at 335; Gilinsky, 440 F.Supp. at 1122. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 60, 94 S.Ct. 1011, 1025, 39 L.Ed.2d 147 (1974). In Alexander, the Supreme Court held that, while labor arbitration does not bar a de novo trial of an employment discrimination claim in federal court, the “arbitral decision may be admitted as evidence and accorded such weight as the court deems appropriate.” Alexander, 415 U.S. at 60, 94 S.Ct. at 1025. This Court is mindful of the tremendous judicial resources already expended in this case and further appreciates the Personnel Board’s greater expertise in interpreting the County’s policies and practices. Therefore, in reaching a de novo determination of the issues raised in this case, this Court will consider as evidence the prior state and local administrative and judicial decisions. The Failure To Promote Plaintiff alleges that defendant failed to promote her because of her sex in violation of Title VII, 42 U.S.C. § 2000e-2(a)(1). A plaintiff may proceed under two alternative theories in presenting a case under this statute, “disparate treatment” or “disparate impact.” The “disparate treatment” approach covers a factual situation where “[t]he employer simply treats some people less favorably than others because of their race, sex, color, religion or national origin.” Wright v. National Archives and Records Service, 609 F.2d 702, 711 (4 Cir. 1979) (en banc), quoting International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n.15, 97 S.Ct. 1843, 1854 n.15, 52 L.Ed.2d 396 (1977). In contrast, the “disparate impact” approach “involve[s] employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.” Id. Plaintiff here does not complain of a facially neutral employment practice which has a disproportionately adverse effect upon employees of her sex. Instead the gravamen of her complaint is that discrete adverse actions were taken with regard to her own employment because of her sex. Therefore, this Court concludes that plaintiff here did not advance a case under the disparate impact theory and the Court will analyze plaintiff’s claims under the case law governing the disparate treatment approach. See Wright, 609 F.2d at 711-13. As noted earlier, under the disparate treatment theory a violation will be found where an employer treats some people less favorably than others because of their sex. Under this theory “proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment.” Teamsters, 431 U.S. at 335 n.15, 97 S.Ct. at 1854 n.15. In such a case plaintiff has the initial burden of showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were “based on a discriminatory criterion illegal under the Act.” Furnco Construction Co. v. Waters, 438 U.S. 567, 576, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978). If the plaintiff carries this initial burden, the employer has the burden of going forward with evidence of some legitimate, nondiscriminatory reason for the action. Id. at 578, 98 S.Ct. at 2950. Plaintiff then has the burden of proving “that the proffered justification is merely a pretext for discrimination.” Id.; Wright, 609 F.2d at 714. The risk of nonpersuasion, however, does not shift. It remains on plaintiff throughout the case. See Wright, 609 F.2d at 714 n.13; Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978). In McDonnell Douglas, the Supreme Court set forth a framework for analyzing whether a plaintiff had established his or her prima facie case, requiring that the plaintiff show: (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. Id. at 802, 93 S.Ct. at 1824. This test is to be flexibly applied to the facts in a particular case. It has been applied to govern promotion decisions such as the case at bar. Wright, 609 F.2d at 714; Davis v. Litton Bionetics, Inc., 444 F.Supp. 638, 639-40 n.3 (D.Md.1978). In order to establish a prima facie case and thereby create an inference of discrimination here, plaintiff here had to show that she belongs to a protected class, that she applied and was qualified for a job for which her employer was seeking applications, that despite her qualifications she was rejected, and that the promotion was available to others of her qualifications. See Wright, 609 F.2d at 714. Plaintiff could, of course, also sustain this burden by introducing direct evidence tending to show discriminatory motive on the part of defendant. See Teamsters, 431 U.S. at 335 n.15, 97 S.Ct. at 1854 n.15. Plaintiff, a female, is clearly a member of a class protected under the statute. In April, 1972 she applied for promotion pursuant to an announcement of promotional opportunity posted by the Office of Personnel. Another applicant, L. Gregory Odum, received the subject appointment on May 22, 1972. Plaintiff was notified of her rejection by a June 6,1972 letter. Therefore, the only question as to whether plaintiff established a prima facie case centers on the question of whether she was qualified for the grade 30 position of Chief of Planning and Evaluation. The announcement of promotional opportunity set forth the qualification requirements as follows: Graduation from a college or university with a master’s degree in the field or urban or social planning and analysis or other related fields, plus adequate experience in one or more aspects of urban planning and/or program’ design and evaluation. An equivalent combination of training and experience may be substituted for the stated academic requirement. Applicants must be Merit System employees. Plaintiff’s Trial Exhibit 7. Plaintiff has a B.A. in pre-planning (1956) and a master of arts in urban planning (1957) from the University of Washington. The application for the position of Chief of Planning and Evaluation indicates that she devoted the majority of her time between 1956 and her termination from the Model Cities Program in 1972 to employment in the planning field. Under the selection process employed by defendant during the relevant time period, a personnel analyst from the Office of Personnel rated the applications submitted for posted promotional opportunities according to the formal qualification requirements stated in the announcement. See Tr. 192; P.I. Tr. 332. Lucille Johnson, the personnel analyst who rated the applications for the position in question, rated plaintiff as “well-qualified” on the basis of the above information. Tr. 170. Although Johnson testified that her supervisor, H. Roberson, disagreed with this rating, plaintiff’s application was initialed by both Roberson and Johnson, and was certified to division head Ogene with this “well-qualified” rating unchanged. Tr. 168,191; Plaintiff’s Trial Exhibit 41. Plaintiff clearly met the stated formal qualifications. Her application then went to Ogene for consideration along with that of Odum. Under the Merit System Ordinance Ogene as division head had the duty to make the final selection. Tr. 192; Merit System Ordinance §§ 13-64, 13-65 (Plaintiff’s Trial Exhibit 18). This final evaluation by the division or department head was to determine the candidate best suited for the particular job, and this determination would naturally require consideration of factors not resolved by the formal qualifications. The position description posted with the announcement of promotional opportunity stated as follows: Incumbent will direct the overall planning programs in each of the Model Cities component areas and conduct meetings with federal, state, and county administrative officials concerning planning. Also, position includes supervision of work of staff planners and other personnel engaged in research and evaluation. Plaintiff’s Trial Exhibit 7. The job thus entailed both the direction of the Model Cities Program’s efforts and the supervision of subordinates. Defendant properly considered supervisory ability and the ability to direct a large program’s efforts as further qualifications beyond the formal requirements stated on the announcement. In attempting to rebut plaintiff’s prima facie case, defendant contends that plaintiff entirely lacked supervisory experience or the ability to supervise, and that she was, therefore, unqualified for the position in question. At this prima facie stage of plaintiff’s case, the Court is of the view that plaintiff had only the burden of producing evidence to show that she was qualified for promotion because she had demonstrated some supervisory experience or ability. While the record establishes that plaintiff had no more than minimal supervisory experience, defendant clearly did not consider such experience per se to be an unalterable prerequisite to the job. Thus Odum, plaintiff’s competitor, was recommended for appointment to this position in an acting capacity even though the recommending official, Thomas Cassidy, knew that Odum had no supervisory experience while in the Model Cities Program. Tr. 592. Plaintiff produced evidence tending to show that she had demonstrated some supervisory capacity in the course of performing her responsibilities in the Model Cities Program. Plaintiff’s duties involved coordination with outside consultants and with other government agencies. P.I. Tr. 32; Tr. 133, 207, 495. In addition, Gerald Gettleman, Ruth Brown, and Sylvester Vaughns, all of whom worked closely with plaintiff on Model Neighborhood Action Board (hereinafter referred to as MNAB) matters during her tenure in the Model Cities Program, thought that plaintiff had the capacity to supervise. Tr. 133, 147, 207. The Court finds that plaintiff produced sufficient evidence to show that she had demonstrated some capacity to supervise while performing her duties in the Model Cities Program. Evidence in the record does not clearly establish that plaintiff had demonstrated such capacity to supervise to the selecting officer, Ogene. Plaintiff’s work with the MNAB was for the most part done outside of the Model Cities office. Obviously, if Ogene had no reason to know of plaintiff’s supervisory capacity, he would not have been able to conclude that plaintiff was in fact qualified for the position. However the evidence of the stormy relationship between Ogene and plaintiff so clouds this issue as to render it virtually incapable of final resolution. The determination of this issue becomes unnecessary in light of this Court’s resolution of other issues in this case. For the purposes of considering plaintiff’s prima facie case, the Court assumes that Ogene did have reason to know that plaintiff had demonstrated some supervisory capacity in the course of her duties in the Model Cities Program. The Court therefore finds that plaintiff established a prima facie case of discrimination, shifting the burden to the defendant to come forward with legitimate, nondiscriminatory reasons for its failure to promote plaintiff. Defendant advanced as its reason for its decision to select Odum over plaintiff that Odum was simply better qualified than plaintiff for the position in question. Plaintiff argues in response that Odum was in fact not even qualified according to the posted qualification requirements. The Court considers plaintiff’s initial contention in some detail. Odum’s education includes training in law and economics, but no formal training in planning. P.I. Tr. 242-3; Plaintiff’s Trial Exhibit 42. Odum’s planning experience is limited to that gained from his employment in the Model Cities Program beginning in April, 1971. Odum’s work experience prior to his employment with the Model Cities Program had been for the most part in various positions in the Nigerian Foreign Service. Odum joined the Model Cities Program in April, 1971 as an economic development planner, serving under the Chief of Planning and Evaluation, Thomas Cassidy. P.I. Tr. 246-47. In December, 1971 Odum was appointed to fill the Chief of Planning and Evaluation position in an acting capacity- Odum’s educational background does not precisely meet the formal qualification requirements set forth in the promotional announcement. See Plaintiff’s Trial Exhibit 7. However, the announcement provides for such an eventuality, stating that “[a]n equivalent combination of training and experience may be substituted for the stated academic requirement.” Id. In accordance with the defendant’s selection process, the Office of Personnel was responsible for rating each applicant in terms of the requirements set forth in the announcement. Merit System Ordinance, § 13-65. The lowest rating which Odum received was “qualified.” Tr. 168-70. Lucille Johnson, the personnel analyst who rated Odum’s application, thus found that Odum’s combined education and experience met the required formal qualifications. Johnson’s supervisor in fact raised Odum’s rating to “well-qualified.” Odum’s and plaintiff’s applications consequently carried identical ratings from the Office of Personnel when they were certified to Ogene for further consideration. As earlier discussion has indicated, the department or division head had the duty to choose the best candidate for the particular job from those applicants certified for his consideration. The position description provided that an incumbent would be required to direct the Model Cities planning programs and to supervise the work of staff planners and other personnel. The responsibilities of the position did not require a pure planner, but rather a person with some planning background who would be able to perform various administrative and supervisory duties and to work with all members of the program to achieve program goals. Ogene testified that he found, and defendant contends here, that Odum was better qualified than plaintiff to perform these duties. Odum had demonstrated that he possessed many attributes important to success in carrying out the responsibilities of the position. Thus, in the letter which notified plaintiff of another’s selection, Ogene cited the selectee’s better administrative experience. P.I. Tr. 184-85. Defendant introduced significant evidence demonstrating Odum’s prior administrative experience. Odum’s responsibilities as an executive officer in the Consular and Treaties Division of the Nigerian Foreign Service included coordination of the editing, transcription, and overnight printing of all publications from international conferences to ensure their distribution to conference members the following day. P.I. Tr. 244. In that position Odum also supervised five clerical workers. Id. Odum also served as economic secretary to the Nigerian Embassy in Washington, D.C. He was responsible for the work of the commercial attaches to the Nigerian Consulate General in New York and also acted as liaison to such international organizations as the World Bank, the International Monetary Fund and the Agency for International Development. He also handled various assignments from the Nigerian Government, coordinating activity with agencies that had a bearing on the assignment, and evaluating the final product of the assignment. P.I. Tr. 246. Finally, Cassidy testified that while Odum was an economic development planner under Cassidy; Odum had been developing a whole work plan, looking down the whole future year, indicating tasks, timing, responsibilities, products, both for the Model Cities planning as well as for the overall program and project evaluation. Tr. 592. Thus, Odum’s previous responsibilities had given him the opportunity to direct and administer the broad efforts of various programs. Odum also had served four months in an acting capacity in the actual position in question and had therefore had this additional administrative and supervisory experience. In comparison with Odum’s prior administrative experience, plaintiff has introduced evidence which supports a finding that she has had significant responsibility, but little administrative experience. She worked on several large funding proposals for federal grants, and in aid of such projects she “coordinated” with outside consultants such as architects and engineers as well as with various agencies. Tr. 207. As has been noted earlier, it is not at all clear what this “coordination” entailed. Id.; see n.18 supra. Plaintiff’s duties also required that she work closely with the MNAB. In that function she often acted as a liaison to various government agencies. Tr. 199. In 1971 she represented the MNAB’s position in negotiations with the National Capital Park and Planning Commission regarding a memorandum of understanding for the Master Plan to be implemented in the area with HUD funds. There is, however, no evidence in the record to indicate that plaintiff orchestrated other persons’ efforts on any large scale project. Plaintiff represented that while she was a housing and neighborhood planner she had supervised a task force composed of Model Cities staff who held higher grades than she assigned to her for these major grant efforts. P.I. Tr. 32. However, memoranda from Bill Walsh and Sandy Cherry to plaintiff and a memorandum from plaintiff to Rolanda Blier suggest only that these individuals, with grades equal to or higher than plaintiff’s, provided plaintiff with information on one of her projects. Attachments to Plaintiff’s Trial Exhibit 35. In addition, all of plaintiff’s supervisors in the Model Cities Program testified that she had not exercised any supervisory role in the Model Cities Program. The record in fact indicates that plaintiff’s responsibilities rarely required that she work with other staff, and it appears that she most often worked independently of other Model Cities staff both on funding efforts and on planning projects in her area of expertise. See, P.I. Tr. 208; Tr. 66, 210-11, 218, 281, 286, 513. Thus, although plaintiff certainly worked on major projects critical to the success of the Model Cities Program, the evidence does not show that she had any particular experience in the administration or the direction of a group’s efforts. The Court finds that Odum’s administrative experience was in this way superior to plaintiff’s and that Odum’s advan- tage in this regard would be significant in any consideration of the likely performance of each individual in the position in question. Defendant also introduced evidence to show that plaintiff had had significant difficulties in maintaining good relationships with her superiors in the Model Cities Program. See, e. g., P.I. Tr. 77; Tr. 580. The position in question required significant contact between the chief and his or her superiors. Defendant therefore considered plaintiff’s apparent inability to get along with her present superiors as a further legitimate, nondiscriminatory reason for her non-selection. The evidence on this issue pervades the record. Yvonne Tyler, administrative assistant to Ogene from July, 1971 through the time of plaintiff’s termination, observed that plaintiff did not get along with any of her superiors during that period. Testimony indicated that Cassidy complained as early as June, 1970 that plaintiff refused to accept his assignments and instead set her own work priorities. P.I. Tr. 69-70, 77; Defendant’s Trial Exhibit 4 (attachment dated June 3, 1970). This problem continued while plaintiff worked under both Mock and Odum and both of these supervisors complained to Ogene. P.I. Tr. 108, 208, 253; Tr. 48-51. Mock explained at trial that plaintiff’s difficulties with supervisors resulted from her inability to get along with “management.” Tr. 51. Confusion in the chain of command relevant to plaintiff’s duties undoubtedly contributed to this problem after January, 1971. See, e. g., Tr. 14. A budgetary error had inadvertently resulted in the elimination of plaintiff’s physical planner position after December, 1970. Plaintiff proved unwilling to compromise on the scope or content of her assignments in this difficult situation. Cassidy, Mock, and Odum all experienced plaintiff’s refusal to accept their assignments because she was on “special assignment.” P.I. Tr. 70, 77, 108, 253. See Defendant’s Trial Exhibit 4 (attachments). The record establishes that plaintiff did often receive priority assignments outside the normal chain of command from the director of the program or his assistant. See, e. g., Tr. 15, 56. However, defendant adduced testimony which showed that plaintiff’s continued refusal to accept supervision resulted primarily from her own abrasive manner and sense of self-importance. See, e. g., P.I. 208, Tr. 406-07. Her attitude exacerbated the inevitable misunderstandings resulting from this organizational problem. See, e. g., Tr. 460. The evidence indicates that plaintiff contributed significantly to her difficulties in getting along both in the organizational structure, and more particularly, with her superiors. Defendant also introduced some evidence to show that plaintiff had difficulties working with her peers and subordinates. Yvonne Tyler recounted an incident in which she observed plaintiff confronting James Farmer, a peer, about Farmer’s messy desk, a complaint which generated a loud argument disrupting normal office operations. P.I. Tr. 223. Salvatore DeLeva, a planner who worked with plaintiff, testified that he had had some difficulty working with plaintiff on the Master Plan because plaintiff had a greater familiarity with the plan and “expected more out of him.” Tr. 218-19. Although DeLeva explained from the stand that he considered this to be an unimportant matter, he did not deny going to plaintiff’s supervisor, Cassidy, with a complaint at the time of the incident. Id. Yvonne Tyler, who was in charge of the Model Cities clerical staff, testified that plaintiff had difficulties getting along with the clerical personnel. P.I. Tr. 215, 217. She also recounted several incidents in which she observed plaintiff using abusive or insulting language to administrative aides, including herself. P.I. Tr. 219, 221. The record as a whole establishes that plaintiff had some difficulties getting along with Model Cities staff and that her supervisors were aware of this problem. The evidence of friction between plaintiff and her supervisors and some other staff stands in marked contrast to evidence concerning Odum’s relationships in the Model Cities Program. Cassidy, Ogene, and Yvonne Tyler all testified that Odum got along well with his superiors and co-workers. Plaintiff offered no evidence to dispute this testimony. Because neither Odum nor plaintiff had significant supervisory experience, the applicants’ demonstrated ability to get along with superiors, peers, and subordinates in working relationships would be particularly significant in determining how each would perform in a supervisory role. Thus, Thomas Cassidy explained that he chose Odum as Acting Chief despite Odum’s lack of supervisory experience because in his view Odum had the ability to get along with people. Tr. 597. In contrast, both Cassidy and Ogene viewed plaintiff as a disruptive influence within the staff, see, e. g., Tr. 580, and defendant introduced evidence supporting such a view. The Court concludes that defendant produced sufficient evidence to demonstrate Odum’s greater ability to get along with superiors and co-workers, as a further legitimate, nondiscriminatory reason for Odum’s selection over plaintiff. The Court also finds that plaintiff’s evidence does not refute the evidence offered by defendant on this issue. Thus, defendant supported its general contention that Odum was better qualified than plaintiff as to two specific criteria, i. e., his better administrative experience and his greater proven ability to get along in working relationships with all Model Cities staff. The burden of production thus shifted to plaintiff to prove these reasons were pretextual and that the selection of Odum was actually based on sex. Plaintiff first attempted to prove that Ogene, who made essentially the final decision on the selection was biased against professional women and that this bias explained his failure to promote plaintiff. The record reveals that Ogene and plaintiff experienced a troubled and tumultuous relationship during their concurrent tenure in the Program. Each of the several employees who testified concerning this relationship commented on the serious problem between the two. However, none of these employees attributed these severe difficulties to any bias held by Ogene against women; rather, Robert Mock, Anna Hart and Sylvester Vaughns all saw the problems as a result of serious personality conflicts between the two. Tr. 18, 67, 206. Mock commented that these problems were worsened by rudeness on both parts. Tr. 18. The record establishes that Ogene’s unpleasant relationship with plaintiff was anything but unusual. Ogene’s superiors and subordinates uniformly characterize him as arrogant, rigid, and holding a superi- or attitude to all but himself. P.I. Tr. 368; Tr. 63, 71, 182, 276. According to many reports Ogene purposely created rancor and pandemonium and was poisonous, petty, and demeaning to all around him. Tr. 34, 318. See P.I. Tr. 354, 366. Thus, although it is clear that Ogene and plaintiff experienced bitter and turbulent interaction, the record does not support a finding that this was due to plaintiff’s sex. Plaintiff also argues that the fact that Ogene designed an examination, or interview, for the two applicants which placed Odum at a distinct advantage over plaintiff demonstrates his discriminatory motive. One section of Ogene’s exam, or interview, contained questions which only the incumbent or one equally familiar with the actual work of the position in question would be able to answer. Tr. 171. This offending section was discarded following the interview at the insistence of Lucille Johnson. P.I. Tr. 150-52; Tr. 194. It is unclear what, if any, further consideration the interview scores received in the final selection process. Tr. 382, 501, 593-94. In light of the record as a whole, the Court does not find that this interview, or exam, had a significant effect on the decision not to select plaintiff for the position. The primary importance of Ogene’s actions with regard to the interview is not the effect of the interview on the selection process, but rather the fact that Ogene demonstrated that he clearly favored Odum over plaintiff for the position. Plaintiff argues that this favoritism demonstrates Ogene’s bias against her as a woman. The Court cannot agree. Ogene’s preference for Odum over plaintiff may be explained as easily by Ogene’s dislike for plaintiff, by his belief that Odum was better qualified than plaintiff, or, in fact, by Odum’s race or national origin as by plaintiff’s sex. Plaintiff had the burden of proving that defendant’s reasons for her non-promotion were pretextual and that the non-selection was due to an illegal sexual bias. Proof of Ogene’s preference for Odum, otherwise unexplained, does not suffice to meet this burden. See Kennedy v. Landon, 598 F.2d 337 (4 Cir. 1979). Plaintiff also attempted to prove that Ogene held a general bias against women. The record does not, however, sustain such a conclusion. Lucille Johnson, who was Ogene’s supervisor for some time following plaintiff’s termination, testified that her problems with Ogene were work related and were not related to Ogene’s feelings toward women. Tr. 181. Anna Hart testified that Ogene had problems dealing with people whom he felt to be inferior to him, and that she could not say that an employee’s sex made a difference in Ogene’s treatment of the employee. Tr. 63, 72. From the record it appears that Ogene had as much trouble with men as with women in the Model Cities Program. Robert Mock, Salvatore DeLeva, and Charles Olson all testified that they had serious difficulties working with Ogene, and Mock also recounted further problems which George Timberlake experienced. Tr. 32,43, 45, 219-20, 276, 279. Plaintiff also introduced testimony of Ogene’s personnel techniques in the Program at a time considerably after plaintiff’s termination, as well as testimony regarding his handling of personnel in the job he held immediately before coming to the Model Cities Program. Donna Olson, Charles Olson’s wife, testified that she encountered problems working with Ogene in 1974, more than two years after plaintiff’s termination. She noticed deterioration in her relationship with Ogene after she rebuffed his several attempts to socialize outside of work. Tr. 315. According to Mrs. Olson’s testimony, Ogene took the rebuffs personally. In order to place this testimony in context, it is important to note that Mrs. Olson also characterized the “general atmosphere in the whole agency at that time” as “poisonous to everyone who worked there.” Tr. 318. She attributed the poison to Ogene’s “constant petty intriguing, his trickery and deceit, and the way he dealt with people, his demeaning manner when he dealt with professional people.” Tr. 318. Mrs. Olson testified that during this time she was the only white professional woman in the agency. Thus, although Donna Olson’s testimony taken as a whole again portrays Ogene as a remarkably unpleasant employer, her testimony does not permit a conclusion that Ogene’s working relationships were any better with men than with women. The problems which she described in her relationship with Ogene are consistent with Ogene’s actions toward the entire office and that situation existed in an office in which she was the only white woman. Therefore, even if Donna Olson’s testimony regarding a situation two years after plaintiff’s departure from the program can be viewed as relevant, her observations do not aid plaintiff’s case. Similarly, plaintiff introduced testimony from Walter S. Burke, who employed Ogene as Deputy Director of the National Youth Corps for the four months prior to Ogene’s arrival at the Model Cities Program. Burke testified that Ogene had “the idea that whatever he said was right and there could not be objections to it without a hassle.” Tr. 329. The testimony at trial continued as follows: Q. Did you observe his attitude toward women? A. Well, that was a special field. For some reason, I noticed that he was critical of the work that women did. THE COURT: He was critical of everybody, wasn’t he? THE WITNESS: Well, yes. To be honest about it, he had the British attitude of being superior because of position and not because of competence or knowledge. Tr. 329. Burke attributed Ogene’s criticism of the women’s work to Ogene’s dictatorial attitude. Tr. 330. Burke also recalled problems which five white women had obtaining annual leave at the same time as their husbands. Burke stated that Ogene “seemed not to want to consider [the women’s desire to take leave with their husbands] and he doled out vacation periods based upon his own discretion.” Id. The whole of Burke’s testimony indicates that Ogene’s problems with his staff were due to his overbearing and authoritarian nature. He characterizes Ogene’s conduct as his deputy as follows: [H]e was a very strict disciplinarian. It was difficult to please him. He frequently found opportunities to criticize the work of all of his subordinates .... Tr. 328. From the testimony it appears that Ogene had both men and women subordinates while serving in this position. The Court therefore concludes that Burke’s testimony about Ogene’s treatment of women does not demonstrate discriminatory intent. That testimony, taken in context, does not show that Ogene gave different treatment to women than to his staff generally. Burke’s testimony merely demonstrates that Ogene had serious difficulties performing as a supervisor. Plaintiff also introduced observations from Robert Mock and Salvatore DeLeva concerning the status of professional women under Ogene. This evidence is also unhelpful to the plaintiff’s case. Thus, although Mock expressed an opinion that Ogene would never promote a woman above a grade 27, he based that opinion solely on Ogene’s failure to promote plaintiff to the subject position, noting that this instance represented the only opportunity Ogene had to make such a grade 30 promotion during Mock’s tenure. Tr. 19-20. This one instance hardly demonstrates the general bias claimed by Mock. Salvatore DeLeva expressed an opinion that Ogene had only hired one professional woman during DeLeva’s tenure. Tr. 221. On cross-examination, however, DeLeva recalled that six professional women were hired during his tenure. Tr. 222-23. Ogene testified at the preliminary injunction hearing that prior to his arrival, the Model Cities Program employed six male professionals and one female professional (plaintiff) and that as of October, 1972 the program had grown to twenty-two male and fifteen female professionals. P.I. Tr. 137-38. Plaintiff offered no evidence, other than DeLeva’s self-contradictory testimony, to dispute Ogene’s figures. The record reflects that Ogene had a significant part in these hiring decisions. The Court therefore concludes that DeLeva was incorrect in his recollection that Ogene failed to hire women professionals. In addition, although DeLeva speculated that women professionals were not promoted after they were hired, he offered no substantiation for this suggestion. See Tr. 226. Thus, Mock’s and DeLeva’s observations concerning the status of women in the Model Cities Program do not show a discriminatory pattern in hiring or promotion policies of the defendant. Finally, plaintiff introduced two studies prepared by outside groups relating to the status of women employed in Prince George’s County during the relevant time frame. See Plaintiff’s Trial Exhibit 1 (Prince George’s County Executive Task Force Survey on Minority Employment and Program for Equal Opportunity, issued March 1, 1972); Plaintiff’s Trial Exhibit 2 (Report by the Ad Hoc Committee to Study the Status of Women in Prince George’s County, issued July 1, 1972). Statistical evidence can be helpful in proving pretext in a disparate treatment case. See McDonnell Douglas Corp. v. Green, 411 U.S. at 805, 93 S.Ct. at 1825. In such a case, however, the statistical evidence must compare defendant’s work force to a work force of similar qualifications. EEOC v. Sheet Metal Workers Int’l Ass’n Local 122, 463 F.Supp. 388, 399 (D.Md.1978). See Davis v. Califano, 613 F.2d 957, 963-64 (D.C.Cir.1979). Plaintiff has the burden of showing that the work force to which defendant’s work force is compared is qualified. Id. The Court finds that plaintiff has failed to meet this burden. The study represented by Plaintiff’s Trial Exhibit 1 contains employment data describing the number of women employed in broad classifications of positions within various state and county agencies in Prince George’s County. The study reports that within the Model Cities Program there were no women employed in “high-level” positions, ten in “mid-level” positions, and twenty-one in “low-level” positions. Plaintiff’s Trial Exhibit 1 at 61. There were a total of five “high-level” positions, nineteen “mid-level” positions, and thirty-six “low-level” positions in the Model Cities Program. Id. at 11. The testimony regarding this exhibit supplied no additional relevant information. See, e. g., Tr. 90, 154, 175-77, 234-41, 246-63. Plaintiff appears to contend that the fact that none of the five “high-level” positions was occupied by a woman supports a finding that defendant engaged in discriminatory promotion or hiring and that the Court can therefore infer that the reasons offered for the failure to promote her were pretextual. The Court cannot agree. Plaintiff introduced no evidence which would establish what the relevant labor market would be for “high-level” positions in the Model Cities Program. Compare Davis v. Califano, 613 F.2d at 963. Although the Court has been supplied with some information on the number of women in other “high-level” positions in the County’s employ, it is clear that the County employment figures do not represent the relevant labor market. For example, plaintiff argues strenuously that the County employment figures offer further evidence of defendant’s discriminatory practices in the hiring and promotion of women, and, consequently, the Court assumes that she does not consider the County to be the labor market to which Model Cities employment figures should be compared. See, e.g., Memorandum of Plaintiff at 7. The record itself also establishes that County employment is not the relevant labor market for filling “high-level” positions in the Model Cities Program. Testimony demonstrates that such positions were filled both by promotion from within the County and from the outside. See, e. g., Tr. 222-23; P.I. Tr. 427. Although the evidence does not suggest what ratio existed between these two sources for such employees, it is clear that a significant portion and perhaps a majority of the positions were filled by hires from outside the County’s employment. Id. Therefore the County employment figures do not represent the relevant labor market. No other evidence exists on this issue and therefore the Court has no work force with which to compare the Model Cities employment figures. Even if the Court could treat County employment figures as the relevant labor market, further difficulties prevent the use of the data provided to draw the requested inference. Plaintiff not only had the burden of showing what the relevant labor market was, but that the relevant work force was similarly qualified to the one at issue. Here the work force at issue was the Model Cities Program work force. Therefore, plaintiff was required to compare that work force to one similarly qualified. Neither the study represented by Plaintiff’s Trial Exhibit 1 nor the record as a whole establishes what qualifications would identify a woman as qualified for “high-level” positions in the Model Cities Program as reported in the study. The study itself does not refer to either grade or the position performed in dividing positions into the “high,” “mid,” and “low” levels reported. In fact, testimony from the director of the study clearly demonstrated that there is no discernible objective line of demarcation between the three levels, and that the division was made by subjective impressions not fully articulated on the record. Tr. 249-51. The Court was given no information which would permit it to find that persons in “high-level” positions in the County generally were qualified to perform “high-level” positions in the Model Cities Program. In fact, testimony indicates that a physician would have been considered a “high-level” employee in the County, Tr. 260, while, to the Court’s knowledge, unqualified to perform the “high-level” positions in the Model Cities Program. Moreover, although there are only five positions in the Model Cities Program classified as “high-level,” the Court is left to guess what these positions were. The Court cannot in such circumstances have any way of knowing what qualifications a work force similarly qualified to the work force holding the “high-level” positions in the Model Cities Program would have. Thus, plaintiff has failed to provide the Court with information which would permit the Court to identify the relevant labor market or to discern whether any arguably relevant labor market was similarly qualified to persons holding “high-level” positions in either the Model Cities Program or in the County generally. Despite repeated requests from the Court, plaintiff also failed to indicate the number of openings which occurred in the Model Cities Program at the relevant grades of 30 and above during any relevant time frame. Plaintiff also failed to produce any evidence to show how many qualified women either applied, or were available in any relevant labor market, for positions at grade 30 or higher in the Model Cities Program during the relevant time period. See Tr. 170-71. Therefore, while defendant stipulated that there had been no women employed in the Model Cities Program at or above a grade 30 as of plaintiff’s termination, and this study represented by Plaintiff’s Trial Exhibit 1 shows that no women were employed in the Program in “high-level” positions during a point in time immediately prior to the promotion decision here in question, the Court was not provided with the further information necessary to permit the inference sought by plaintiff as to this specific showing regarding persons employed in the Model Cities Program. The Court concludes that plaintiff, by supplying only raw data on employment in the County and within the Model Cities Program, without also supplying the additional information which would permit the Court to identify the relevant qualified labor market, failed to provide sufficient information to permit the Court to draw the requested inferences. The data on the number of women in “high-level” positions in the Model Ci