Full opinion text
OPINION HERMAN, District Judge. I. INTRODUCTION Plaintiff, Ruth Reichman, initiated this action against Defendants alleging employment discrimination on the basis of race, color, sex and religion. Specifically, she claimed that the actions, policies and practices of the Defendants violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-5 and her constitutional rights as secured by 42 U.S.C. §§ 1981, 1983, 1985(3) and 1986. In addition, she alleged pendent state claims for defamation and violation of her rights under the Pennsylvania Human Relations Act, 43 P.S. §§ 951-963. The complaint named four Defendants: the Bureau of Affirmative Action (“BAA”), the agency responsible for the affirmative action program within the Commonwealth of Pennsylvania; three black individuals in their capacities as state officials, Daniel P. Harley, Daniel Sawyer, and James N. Wade; and the same three persons in their individual capacities. All of these individual Defendants acted under color of state law when they took employment actions affecting Plaintiff, including their participation in her furlough with the exception of the sex harassment allegations asserted by Plaintiff against Defendant Harley. Plaintiff filed a charge of discrimination with the EEOC on or about January 6,1978, against Defendants in this case, which charge alleged, inter alia, that the BAA had a past and continuing pattern and/or practice of discrimination based on race and color in hiring, promotion, discipline, discharge, and other terms and conditions of employment which affected Plaintiff both as an individual and as a representative of other Caucasians. She also maintained that Defendants’ decision to furlough her was discriminatorily based on race, color, sex, religion, national origin and handicap (no evidence of any handicap .was ever produced) and in retaliation for her exercise of her constitutional rights. The EEOC did not pursue an investigation of Plaintiff’s charge and on May 23, 1978, the United States Department of Justice issued Plaintiff a “Notice of Right to Sue” based on the charges of discrimination which Plaintiff had filed with the EEOC. On August 7, 1978, Plaintiff filed a timely complaint in this court as permitted by her right to sue letter and her earlier charge with the EEOC. The non-jury trial in this action lasted twelve days. Subsequently, parties submitted proposed findings of fact, conclusions of law, and supporting briefs. In addition, Plaintiff filed a motion for certification of a Rule 23(b)(2) class, which was fully briefed by the parties. Thereafter, on March 27, 1981, the court heard oral arguments in this matter. After studying of the briefs, hearing of oral argument, and the full consideration of all of the evidence and law relative thereto, the court makes the following findings of fact and conclusions of law. II. STATEMENT OF FACTS Plaintiff, Ruth Reichman, is female, Jewish and Caucasian. She was employed by BAA, which is part of the Pennsylvania Governor’s Office of Administration (“OA”), from October 28,1976 until she was furloughed effective on November 10,1977. While at BAA, Plaintiff was Chief of its Program and Technical Assistance Division (“PTA”) and was an Equal Employment Opportunity Development Specialist V (“EODS V”). When Plaintiff started her job as Chief of PTA, she supervised Iris Cooley, a black EODS III; Kenneth O’Vell, a white EODS III, and Freda Keane, a white Clerk/Steno II. At that time, three EODS III vacancies existed in her division. On January 27, 1977, Lang Lewis, a black male who was classified as a Public Administration Trainee in the Legal Division was transferred to Reichman’s division. On March 22, 1977, Jean Becker, a white female who was classified as an EODS IV, was also transferred to the PTA Division working under Plaintiff’s supervision. Since its inception in May of 1976, to the time of trial, twenty-three persons consisting of twelve Blacks and eleven Whites had been employed at BAA. Although Gregg Thompson, a black male, worked for a period of time in BAA, he was not a BAA employee and he was not on the BAA payroll. While he was at BAA, he remained on the complement of the Governor’s Office of Manpower. His salary was paid from federal CETA funds and his performance evaluations were still prepared by that office, not BAA. Although one Caucasian was demoted while Plaintiff was at BAA, Defendant Harley, a black man, took numerous positive steps to hire and promote white persons. While he was the Director of BAA, Harley hired Louise Oncley, a white female, to serve as Chief of the Planning, Research and Evaluation Division (“PRE”), starting work on October 28, 1976; Kenneth O’Vell, a white male, as an EODS II in the PTA Division, starting work on October 28,1976; Freda Keane, a white female, as a Clerk/Steno II in the PTA Division, starting work on November 8, 1976; Sandra Synder, a white female, as a Clerk/Typist II as secretary to the Special Assistant, starting work on November 8,1976; Robert Ford,, a white male, as Assistant Director, starting work on January 6,1977; and Julia Troutman, a white female, as a Clerk/Typist II in the Legal Division, starting work on April 14, 1977. In addition, Harley and Sawyer promoted the following white individuals: Freda Keane, a white female, from Clerk/Steno II to Clerk/Steno III, on July 5, 1978, and to an Administrative Assistant I on October 1, 1979; Sandra Synder, a white female, from Clerk/Typist II to Clerk/Steno II in October 1977; Julia Troutman, a white female, from Clerk/Typist II to Clerk/Typist III on. October 1, 1979; and further encouraged Phyllis Riddle’s placement in an EODS trainee position, following which she was promoted to an EODS II position in October 1978. Furthermore, while Plaintiff was at BAA, two black professionals were promoted. Iris Cooley was promoted from an EODS III to an EODS IV and Lang Lewis was promoted from a Public Administration Trainee (“PAT”) to an EODS II. Lewis’ position as a PAT was a probationary, entry level position. His promotion to an EODS II was not only routine, but required after the successful completion of his probationary period. A. Reichman’s Furlough Prior to June 30, 1977, it became apparent that the 1977-78 Pennsylvania budget would not be passed before the beginning of that fiscal year. As a result of the fiscal problems created by the late passage of the budget, there were two “rounds” of furloughs. The first round of furloughs occurred in approximately July and August of 1977 after the start of the fiscal year but before a budget had been passed. The second round of furloughs resulted from the rebudget (i.e., the development of a budget based on the actual appropriations) and occurred in approximately October and November of 1977. The first round of furloughs was initiated when the Commonwealth’s Budget Secretary issued a directive which ordered Commonwealth agencies to prepare contingency plans to be implemented in the event the budget was not passed by June 30,1977. In response to the Budget Secretary’s Directive, the OA projected that it would have to reduce its budget for non-augmented bureaus, which included BAA, by approximately $500,000. Defendant Wade, Secretary of the Office of Administration, decided that each bureau within OA would share equally in the projected budget reduction based on the percentage of OA’s budget that the bureau received. A projected budget reduction was assigned for each bureau. In order to achieve the projected budget reduction, each bureau was ordered to cut back on spending immediately and, additionally, to prepare contingency plans for reducing personnel. Defendant Harley prepared a contingency plan for achieving BAA’s projected budget reduction of approximately $35,000. It called for the abolishment of the Attorney II position, which had been vacated on May 25,1977, at a savings of $20,232.62, the furlough of the Assistant Director at a savings of $14,939.31, and savings from an employee on maternity leave of $5,663.50. According to testimony of Terrence L. Spaar, former Executive Assistant to Defendant Wade, BAA’s contingency plan was improper in that it overestimated the savings resulting from the proposed action because of a misapplication of two budgetary and personnel rules. First, vacant positions are budgeted only for one-half of the salary and benefits for the fiscal year. Thus, since the Attorney II slot was vacant and had been budgeted only at one-half the salary and benefits, its abolishment would have saved only $10,000 not $20,332.62 as suggested by Harley’s contingency plan. Second, budget savings cannot include savings from individuals on maternity leave because benefits continue to be paid to those individuals and because they have a right to return at any time. Therefore, no savings could be relied on from an employee being on maternity leave and there could not be a savings of $5,663.50 as suggested by Harley. Although Defendant Harley’s contingency plan recommended the abolishment of the Attorney II vacancy, Defendant Wade, Secretary of OA, instructed Harley that the Attorney II vacancy should not be abolished because it was considered to be important to the future operation of the affirmative action program. This decision was made even though Administrative Circular No. 77-101 stated that vacancies should be abolished before employees were furloughed. However, it was not absolutely necessary to abolish all vacancies before an employee could be furloughed. Agency heads had some discretion to keep specific vacancies that were critical to them. With respect to the Attorney II position, abolishment of that position, which was the only position within the Legal Division of BAA, would have meant the end of the Division. The reestablishment of the Legal Division when funds became available would be more difficult because of the procedures necessary to establish a division. Since the Defendants envisioned an important role for the Legal Division in the future, they believed it important not to abolish it. Pursuant to an executive order, furlough notices were sent in July 1977 to be effective in August 1977 to individuals identified in the contingency plans. In the first round of furloughs, only one BAA employee, Robert Ford, the Assistant Director, received a furlough notice as a result of the contingency plan. Reichman was not identified in the contingency plan prepared by Harley as an individual to be furloughed in the first round of furloughs. However,- upon pas-sago of the budget, the Governor ordered a recall of all first round furlough letters until the effect of the budget could be determined through the rebudget procedure. Thus, no one in the OA was actually furloughed as a result of this initial furlough notice. Upon rebudgeting, OA determined that it needed to reduce the budget of the non-augmented bureaus by $500,000, the same amount as had been projected prior to the first furlough round. The rebudget required that the staff of OA be reduced by 65, which included eliminating vacancies and otherwise removing positions from the OA payroll. As a result of the rebudget approximately 30 employees of OA’s non-augmented Bureaus were furloughed. The remainder of the 65 reductions in complement was accomplished by abolishing vacancies. Of these thirty individuals who were “furloughed approximately twelve actually had their Commonwealth employment terminated; the other eighteen were removed from OA’s payroll by retirements or transfers to other agencies. To effectuate the furloughs necessitated by the rebudget, Defendant Wade established a committee consisting of his Executive Assistant, the Director of the Bureau of Personnel, and the Director of the Bureau of Labor Relations. This committee was asked to review furlough plans submitted by each OA bureau to insure that the suggested furloughs were in line with the required fiscal reduction, the personnel rules and regulations, and labor laws. Once this committee reviewed the recommendations submitted by each bureau and approved them, recommendations were submitted to Secretary Wade. If he approved the recommendations, they were put into effect. The recommendations made to Secretary Wade were in terms of job positions and classifications to be furloughed; there was no identification of the individuals who would be furloughed. As a result of the new budget, BAA was required to reduce its budget by $35,000, the same amount as the initial projected reduction. It was necessary to furlough more people in November to realize a $35,-000 savings than BAA would have furloughed in July to realize the same savings because from July to November the individuals to be furloughed were being paid and thus payroll expenditures were above the monthly pro rata allotment for the fiscal year. This situation created a deficit for which there had to be compensation. Accordingly, BAA had to furlough individuals whose combined salaries and benefits equaled approximately $50,000 to $63,000. Harley and Sawyer discussed several methods to achieve this reduction. One method of achieving the required cut was abolishing three clerical positions and one technical position but this would not have saved enough and would have greatly inhibited BAA’s ability to perform its duties. A second method of achieving the required cut was to abolish higher paying positions. This method included abolishing the Chief of PTA position because of a shift in emphasis from the Program and Technical Assistance Division to the Planning, Research and Evaluation Division. This shift in emphasis from PTA to PRE started in the spring of 1977 after a review of the agencies’ 1977 Affirmative Action Plans revealed common problems and the tremendous amounts of staff time used to manually calculate figures for utilization analysis, work which could be done by computer. A three year planning process which was ending at this time revealed that a much stronger research capability was needed to deal with problems identified in agencies’ plans. This made it necessary to focus on programming and development of overall planning concepts which was done by PRE, rather than the information distribution and technical assistance which was the responsibility of PTA. The shift in emphasis from PTA to PRE was reflected in an increase of staff provided to PRE; which included transferring Jean Becker from PTA to PRE in October of 1977. With the shift in emphasis from the work done by the PTA Division to work done by the PRE Division, Harley felt that PTA could be reduced from a Division to a Unit and would not need a Chief. Thus, abolishing the position of Chief of PTA was a logical method for achieving a substantial savings to deal with the budget problem. In addition, Harley considered the furlough of Robert Ford, the Assistant Director, because he determined that Ford’s furlough, along with Reichman’s furlough would be least disruptive to BAA’s implementing its duties since BAA was top-heavy in administrators. An Assistant Director was not necessary because BAA had not grown to the size originally planned. Although the original projected staff for BAA was 24, the Bureau had been able to fill only 14 positions. Furthermore, Ford himself had indicated he would voluntarily accept a furlough if it became necessary because he was seeking a job in Washington, D. C. Therefore, Harley ultimately recommended that Reichman and Ford be furloughed because their positions were the two positions whose elimination would least disrupt the future operation of BAA. Since the positions of Chief of PTA and Assistant Director were relatively high paying positions, Harley would only have to eliminate two employees rather than more lower level staff members. The savings realized by the furlough of Reichman was approximately $12,000 and the savings realized by the furlough of Ford was approximately $15,000 for a combined savings of $27,000. The remaining savings needed to realize a total savings of $35,000 was achieved by not filling the Attorney II vacancy which existed in BAA’s complement. A savings of approximately $10,000 was realized by BAA from the Attorney II position because the position was “frozen”, i.e. it was not permitted to be filled. This savings was realized even though the position was not abolished and no additional savings would have resulted even if the position had been abolished. To determine which particular individual should be furloughed when the position is one covered by civil service, the following non-discretionary procedure is used. The names of all individuals occupying the particular job classification from which a furlough should be made are obtained. A search is made for any individuals holding a status other than a regular permanent status, such as a probationary or provisional status. If there is an individual in probationary or provisional status that individual is furloughed first. If there are no individuals in a probationary or provisional status, the last regular performance evaluation of each individual in the job classification is used to place employees in quarters. Employees in the lowest quarter are furloughed first in reverse order of seniority. The practical effect of this requirement, if there are four or less people in the job classification, is that those individuals’ performance evaluations are numerically ranked and the individuals are furloughed in order of their numerical ratings beginning with the person having the lowest rating. Thus, when the PTA Division Chief, which was classified as an EODS V, was identified as a slot to be abolished, any other individuals working in OA (the furlough unit) who were classified as EODS V’s were compared. The only EODS V employed in the OA in addition to Ruth Reichman was Frederick Brooks who, like Reichman, had regular civil service status. There were no EODS V’s who had probationary or provisional status. A comparison of the last regular performance evaluation for Reichman and Brooks using the required numerical calculation, revealed that Reichman had the lower rating and, therefore, that she would be the one to be furloughed. It was not possible for Reichman to “bump down” to take the position of someone in an EODS IV or III classification because under civil service law, a civil service employee is entitled to move laterally within his or her classification level but not downward. In making the comparison between Reichman’s performance evaluation and Brooks’ performance evaluation, Michael Epoca, the Personnel Officer in OA, used Reichman’s performance evaluation from October 1976 because the evaluation for October 1977 was not submitted to his office. Robert Ford, as Reichman’s immediate supervisor, was responsible for preparing her annual performance evaluation. Ford had prepared and signed a performance evaluation for Reichman on September 14, 1977. Ford’s immediate supervisor, Defendant Harley, had to review the performance evaluation and sign it as the reviewing officer before it was presented to Reichman. Upon receipt of the September 14, 1977 performance evaluation Harley signed it but decided to hold it rather than complete the processing of it because he felt that the narrative was too harsh and that Reichman would not want to have such a narrative in her first BAA evaluation. He decided to hold it until he determined what action was appropriate because Ford was not willing to remove the harsh narrative. Thus, as of the date of her furlough notice, October 11, 1977, no performance evaluation of Reichman completed by her BAA supervisor and reviewing officer had been received by OA’s personnel office. Therefore, Plaintiff Reichman’s last regular performance evaluation was completed in October of 1976 regarding her performance as a Planning Analyst for the Department of Environmental Resources (“DER”). It was the October 1976 DER evaluation which was used in calculating who was to be furloughed. Nevertheless, even if the performance evaluation completed by Ford and signed by Harley on September 14, 1977, had been used in calculating who would be furloughed, Reichman would still have been furloughed since the September 14, 1977 evaluation is substantially lower than Brooks’ evaluation and substantially lower than Reichman’s DER evaluation. After both Ford and Reichman received their October 11, 1977 furlough notices, Ford prepared a second performance evaluation for Reichman on October 17, 1977. Ford admitted that he prepared the second performance evaluation to give Reichman a competitive edge in the furlough situation. The October 17, 1977 performance evaluation which Ford prepared for Reichman was substantially and unaccountably better than the first one he prepared on September 14, 1977, and did not contain the harsh narrative. Furthermore, in the September 14 evaluation, Ford rated Reichman as “good” in the overall evaluation but in the October 17 evaluation rated her as “excellent” in that category. As Special Assistant to the Director, Sawyer had not observed anything in Reichman’s job performance which would have accounted for a drastic improvement in her job rating in less than a month. Furthermore, in twenty-four years as a supervisor, Harley had never seen such an increase in performance in one month. As a result, Harley did not sign the second performance evaluation prepared by Ford because he did not consider it to be an accurate evaluation of Reichman’s work for that period of time, since no supervisor could have seen such a vast improvement in performance in only one month. In addition to the substantial improvement in Reichman’s performance evaluation, the relationship between Reichman and Ford became more friendly after they both received furlough notices. Numerous employees of BAA testified concerning the hostile relationship between Reichman and Ford before the second furlough notices were received and the friendly relationship after receipt of those notices. Specifically, before receiving her furlough notice, Reich-man complained to Harley that Ford was disagreeable, did not accept recommendations, very often did not permit her'to carry out her duties as she felt she should as Chief of PTA and made other general complaints. She also suggested more than once that Ford be fired and was very pleased when she heard Ford had been furloughed during the first round of furloughs. Ford had also demonstrated his hostility toward Reichman prior to receiving his furlough notice in the second round of furloughs. Ford had told Harley on several occasions that he wanted to begin to keep a file to show poor performance on Reichman’s part in order to build a case to fire her and tried to insert a derogatory memo into Reich-man’s personnel file, which Sawyer strongly opposed and which Harley refused to allow. Yet, after Reichman and Ford received their furlough notices during the second round of furloughs, they became friends, spent a lot of time together and lunched together; things that they had not done before they received their furlough notices. While such evidence calls into question the reliability and objectivity of the October 14 performance evaluation of Reichman, civil service regulations also prevented the use of that evaluation. Pursuant to civil service regulations, an evaluation completed after the date the furlough notice was sent could not be used in determining who was to be furloughed. Thus, Ford’s October 17, 1977 evaluation of Reichman could not be used in determining if Reichman would be furloughed because it was completed after the furlough notice was sent. If a performance evaluation completed after a notice of furlough had been sent were used to reconsider who should be furloughed, such actions would render the furlough process ineffective. Consequently, Reichman’s furlough became effective at the close of business on November 9, 1977. Immediately before Reichman was furloughed, there were fifteen employees at BAA — nine Whites and six Blacks. On November 9, 1977, BAA had nine professional personnel, four of whom were Black and five of whom were Caucasian. After BAA furloughed two of its professional employees, Reichman and Ford, BAA had seven white employees and six black employees, which included three white and four black professional employees. This action was taken even though BAA’s Affirmative Action Plan for 1977-78 listed two whites as target hires. Furthermore, Management Directive No. 505.7 and Administrative Circular No. 77-77 required that agencies insure that the furlough of employees did not create a “disproportionate effect on progress achieved in the hiring, promotion, and retention of minorities and women”. While Defendant Harley considered the impact of furloughing Ruth Reichman and Robert Ford on BAA’s Affirmative Action Plan and the Management Directive when he first considered recommending their furloughs, he concluded that their furloughs would not have a negative impact on BAA’s overall affirmative action goals. Moreover, since the preservation of a functioning work unit was the primary concern in recommending furloughs, the impact of the furloughs in BAA’s affirmative, action plan was given secondary consideration. After Reichman was furloughed on November 9, 1977, her position was abolished and PTA was reduced from a division to a unit. For four to six weeks after Reichman was furloughed, nobody was named head of the PTA unit. Instead, the PTA staff reported directly to Defendant Sawyer. When Sawyer found that he could not handle the PTA unit along with all of his other duties, Iris Cooley was named the supervisor of the PTA unit. While supervisor of the PTA unit, Cooley received no promotion and no out-of-class pay. Iris Cooley, a black female, was hired as an EODS III in the PTA Division, starting work on September 26, 1976. While Reich-man was Director of PTA, Cooley was under Reichman’s immediate supervision. Harley, however, had prepared and signed Cooley’s first performance evaluation because Reichman had only been supervising Cooley for about one month and Harley believed that was not long enough for Reichman to properly evaluate Cooley’s performance. In addition, in March of 1977, Harley had recommended Cooley for promotion from an EODS III to an EODS IV after she had been an EODS III for three years. This promotion was approved by Defendant Wade and became effective on March 31, 1977. After Cooley received her promotion, Reichman prepared Cooley’s second performance evaluation because she was Cooley’s immediate supervisor. This performance evaluation ranked Cooley substantially higher than the performance evaluation that Harley had prepared. In the performance evaluation that she prepared for Cooley, Reichman made special mention of the fact that “[i]t is most important that we maintain working along lines of organizational structure, and working with and through me as your immediate supervisor, has made for a smooth operation.” Subsequently, in September of 1978, Cooley was named Special Assistant to the Director. As a consequence of her assignment as the Special Assistant, which is a higher position than an EODS IV, Cooley was paid out of grade for that time period. Yet, even before Plaintiff was furloughed, Harley had proposed that Cooley be Chief of PTA rather than Reichman. In a September 15, 1977 memorandum to Secretary Wade, Harley recommended that Reichman be reassigned from her position in BAA to work in another office, under Churchill Kohlman. Kohlman had special responsibilities in the Governor’s Personnel Office for affirmative action in the selection of non-civil service employees for Commonwealth employment. Harley testified that he made this request because Kohlman had approached him and indicated an interest in having Reichman on his staff. B. Investigation of the Southeast Regional Office of the Department of Public Welfare During the summer of 1977, organizations representing various ethnic groups expressed their concerns about the affirmative action policies, programs and forms administered by Pennsylvania agencies to Lieutenant Governor Kline. As a result of that conference, Defendants Harley and Sawyer met with representatives of the Polish-American Affairs Council, the Pennsylvania Order of the Sons of Italy (Grand Lodge), and the American Jewish Committee (Philadelphia Chapter) (AJC) on July 7, 1977, in Philadelphia. As a follow-up to the July 7, 1977 meeting, those Defendants also met with representatives of the AJC and several employees of the Department of Public Welfare, Southeast Region (SEDPW) on July 19, 1977, in Philadelphia. At these meetings, representatives of the ethnic groups expressed their complaints regarding abuse of affirmative action programs and policies and made specific allegations of discrimination against Caucasians by the Southeast Regional Office of the Department of Public Welfare. In response, BAA attempted to resolve these charges by directing Louise Oncley to do a fresh analysis of the SEDPW employment statistics to see if they indicated possible discrimination and having Ruth Reichman, BAA liaison with DPW, tell Colonel Johnson, DPW’s Affirmative Action Officer, to investigate the situation in SEDPW. Oncley performed a fresh utilization analysis of the employment figures in the SEDPW Regional Office. This work force analysis showed that projected hires under the SEDPW Regional Office affirmative action plan were for 58 percent white males, 33 percent black males, and 8 percent white females. A work force analysis for the entire region, however, indicated that although black employees predominated in the clerical and nonprofessional jobs, management positions were primarily held by white employees. Plaintiff Reichman, in her role as Chief of the PTA Division, had no responsibility to investigate complaints of discrimination. PTA’s duties in dealing with complaints in accordance with the Division’s “Mission and Functions Statement” are limited to advising and providing state agencies or employees with consultation regarding specific grievances. Thus, Reichman’s only assignment concerning the questions of the ethnic agencies was to contact the appropriate DPW staff, communicate the ethnic organization’s concerns and indicate that BAA was requesting that a special review be made regarding those concerns and that the results of the investigation be reported back to BAA. In an August 24, 1977 memorandum, Reichman informed Harley and Sawyer that she had discussed the complaints about SEDPW with Colonel Johnson and outlined the actions that Colonel Johnson would be taking to pursue the matter. Subsequently, on September 1, 1977, Reichman informed them of the results of the actions that Colonel Johnson had taken and his conclusion that DPW was “in the clear” and that the “entire issue was a political ploy.” Reich-man herself concluded that SEDPW did not suffer from utilization problems in a memorandum written on September 27, 1977. Defendants Harley, Sawyer and Wade took steps to inform Lieutenant Governor Kline and the members of the ethnic organizations of the results of their investigations. On October 11, 1977, Harley wrote to the Regional Director of the American Jewish Committee, one of the concerned ethnic groups, and reported: We have done a fresh analysis of the Department of Public Welfare Regional Office in Philadelphia and have found that while doubtlessly some gains have been made by minorities and women in that office, there still exists some underutilization which we hope will be addressed in an amicable way. This should not be construed as meaning that we believe that the other concerns regarding that office are invalid. At this point, most are still under investigation. Other than Reichman’s allegations, no probative evidence was introduced that demonstrated Defendants intended to furlough Plaintiff because of her role in the investigation of SEDPW or to impede the performance of her job in any other manner. Indeed, BAA’s investigation of the ethnic organizations’ concerns continued after Reichman’s furlough until April of 1978 when the ethnic groups filed an EEOC complaint against BAA. C. Reichman’s Claims of Sexual Harassment and Religious Discrimination Substantial testimony was adduced to show that prior to receiving her furlough notice, Reichman behaved in a flirtatious manner toward Defendant Harley. In the office, she frequently complimented Harley on his appearance, straightened his tie, moved her body in a provocative manner around Harley, and otherwise acted unprofessionally. Despite his repeated refusals, Reichman asked Harley to have dinner at her house several times. During that period of time, Reichman was visibly upset that Harley declined her invitations. Moreover, Harley engaged in no conduct to encourage Reichman’s flirtatious behavior. On Saturday, March 19, 1977, Reichman, Oncley, Cooley, and Defendants Harley and Sawyer attended a conference in Philadelphia. Prior to the meeting, Reichman asked Freda Keane, secretary for the PTA Division, to make hotel reservations for her in Philadelphia for the nights of March 18 and 19. Oncley and Cooley, however, drove to Philadelphia from Harrisburg on March 19 and returned on the same day. After the conference, Sawyer suggested that Reichman join Harley and himself for dinner, an invitation which she accepted. There was dancing at the restaurant where they dined and Harley danced with Reich-man. After dinner, Reichman suggested that they go to Fran O’Brien’s, a night spot a few blocks from the restaurant. When they got to Fran O’Brien’s, Sawyer felt ill and went back to his hotel leaving Harley and Reichman at Fran O’Brien’s. Harley and Reichman each had several drinks and continued to dance together. Subsequently, Harley walked Reichman to her car in the motel parking lot across the street from where she was staying. Harley testified that she then gave him a goodnight kiss to which he did not respond other than to say goodnight. Reichman, however, asserted that Harley forced a kiss upon her and insisted that he should accompany her back to her motel. Even assuming that Harley initiated the kiss, the court finds that his actions were not undesired nor unwanted. Moreover, Reichman’s behavior toward Harley was the same after March 19, 1977, as it was before that date. She continued to invite him to her house for dinner. It was not until after Reichman received her furlough notice that she changed her attitude toward Harley and became openly hostile. At that time, she indicated on several occasions that she would get Harley and destroy BAA. Reichman’s claim of religious discrimination is based upon statements made by Defendants Harley and Sawyer and the scheduling of a meeting on Yom Kippur, September 22, 1977. The alleged statements, most of which Harley and Sawyer admittedly made, generally concerned various political issues. Harley and Sawyer expressed their opinions concerning the Arab-Israeli conflict and Menachim Begin, particularly his terrorist activities in 1947. Such views were similar to those expressed by certain news media during that time period. Reichman took issue with such comments. In. addition, Harley acknowledged his disagreement with the position taken by various ethnic organizations in the Bakke case in opposition to affirmative action programs; a view adopted by other employees at BAA. Indeed, this topic was discussed at BAA staff meetings. While Harley knew that Reichman was Jewish, he did not assume that she supported the position of the American Jewish Committee regarding Bakke. On September 15, 1977, Defendant Harley sent a memorandum to all BAA staff members in which he officially informed them of the monthly meetings to be held by the Affirmative Action Task Force. Harley emphasized that “[a]ll technical staff will be expected to attend all of these Task Force meetings.” The September meeting was scheduled for September 22, 1977, the Jewish holiday of Yom Kippur. This meeting was for BAA employees and the Affirmative Action Congress, which was composed of the affirmative action officers in the thirty-eight state departments and agencies. Although it is unclear whether Harley knew that September 22 was Yom Kippur, when he prepared the memorandum, Reichman did advise Harley prior to the meeting that September 22 was a Jewish holiday and requested that the meeting be rescheduled. Harley was surprised at this request since he was not aware that Reich-man observed Jewish holidays or practiced the Jewish religion because she had not requested leave for Rosh Hashanah, which occurs the ninth and tenth days before Yom Kippur. Harley, however, did not believe that the meeting should be delayed because of some serious concerns and it would be difficult to reschedule a meeting. Furthermore, although Harley expected staff members to attend such meetings, he recognized planned vacations, religious holidays, and emergencies as valid reasons for missing the meetings. Indeed, Reichman’s request for leave on September 22, 1977, was approved and she did not attend the meeting. Nevertheless, minutes of the meeting were prepared and available for review by employees of BAA. Moreover, other BAA employees occasionally missed Task Force meetings without any repercussions or resulting disciplinary action. D. Claims of Defamation Against Defendant Harley Individually 1. Harley’s Memorandum of November 10, 1977. — After Reichman received her furlough notice, Defendant Harley heard that Reichman was making negative accusations and threats against Harley and BAA. Indeed, she directly told Harley “[t]hat if it’s the last thing I do in life, I’m going to destroy you and this Bureau [BAA].” Accordingly, on November 10, 1977, Harley contacted John Raup, the Commonwealth attorney who previously provided BAA with legal counsel, and explained the situation to him. Following the conversation, Harley dictated a memorandum to Phyllis Riddle based upon his discussion with Raup. Upon Harley’s instructions, Riddle took the finished memorandum to Raup for his review and approval before the memorandum was sent. Raup read the memorandum in Riddle’s presence and approved its transmittal. Upon Raup’s legal advice, Harley sent the memorandum to at least 72 persons in the agencies with which BAA had contact. The memorandum stated: This is to inform you that Ms. Ruth Reichman is no longer a member of the staff of the Bureau of Affirmative Action. This was effective at the close of business on 11/9/77. There should be no official discussions regarding the Affirmative Action Program and the provision of information and records to Ms. Reich-man in the future. You should record visits made by Ms. Reichman and keep a record of any discussions taking place with you or members of your staff. Please provide me with a copy of a record of all discussions that you and your staff have with Ms. Reichman after 11/9/77. Harley wanted these agencies to know that Reichman was no longer employed at BAA and that she was not representing BAA in any of her contacts with these agencies. Additionally, Harley needed to know what Reichman was saying about BAA so that he could correct any false image created or inaccurate information submitted by Reichman. Although Defendant Sawyer did not assist in the preparation of the memorandum, he was aware that the memorandum was being sent and took no action to stop it. In any event, Reichman presented no evidence indicating that this memorandum of November 10, 1977, was interpreted by any recipient to defame Reichman or to harm her reputation. The only witness who testified on Plaintiff’s behalf about the effect of the memorandum stated that he did not know what it meant except that Reichman was furloughed on November 9, 1977. 2. Statements Concerning Reichman’s Morality. — Ernest Conley, administrator of the affirmative action program for the Bureau of Vocational Rehabilitation (“BVR”), testified that Harley told him that Harley could have had sexual relations with Reich-man and that Harley furloughed Reichman because she was too active in Jewish affairs. Conley, however, was not an unbiased witness. When Reichman served as the BAA liaison to BVR, Reichman and Conley became good friends. Moreover, Conley gave special treatment to Reichman, which he did not provide to other individuals. These favors included introducing her to his staff, calling her on the telephone and singing “Happy Birthday,” escorting her to the elevator when she would leave, allowing her extensive use of the office phone although other non-staff members, including Kenneth O’Vell, Reichman’s successor as BAA liaison to BVR, were prohibited from using it, artd allowing her to use his personal phone. Furthermore, Reichman approved BVR’s affirmative action plan even though Conley testified that it was not in final form and lacked short term goals. While Conley found that Reichman’s performance with BVR was outstanding, O’Vell worked over a month making significant changes in BVR’s affirmative action plan as initially approved by Reichman. In contrast, Defendant Harley denied making any statement that he could have gone to bed with Reichman or that he fired her because of her active involvement with Jewish organizations. In the office, Harley never said or did anything that made the BAA staff think he was making sexual advances or sexually harassing any of the women at BAA. III. DISCUSSION A. Reichman’s Standing To Raise Pattern and Practice Claim In Count I of the complaint, Reichman charges that Defendants are engaged in a continuing pattern and practice of discrimination based upon race and color in violation of Title VII of the Civil Rights Act of 1964. The specific policies and practices which Reichman has challenged are BAA’s development and approval of affirmative action plans used by Commonwealth agencies, the exclusion of certain racial and ethnic groups from such affirmative action plans, the application of utilization analysis to Commonwealth employment figures, and the use of affirmative action certificates. Although such practices may violate the provisions of Title VII, we do not reach the merits of this claim since Reichman lacks standing to present such claims. With respect to questions of standing, the Third Circuit Court of Appeals has announced: Broadly put, the question raised by a dismissal for want of standing is “whether the litigant is entitled to have the court decide the merits” of the legal controversy before it. Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). This inquiry normally turns not upon “the fitness for adjudication ... of the legal questions” at issue, but rather on “the nature and sufficiency of the litigant's concern with the subject matter of the litigation.” Frissell v. Rizzo, 597 F.2d 840, 843 (3d Cir.) (emphasis added), cert. denied, 444 U.S. 841, 100 S.Ct. 82, 62 L.Ed.2d 54 (1979). To determine whether a party has standing, the court must initially require the party to “demonstrate that he, himself, has been exposed to some actual or threatened injury” and then determine “whether the claim is barred by nonconstitutional, prudential limitations on the exercise of its jurisdiction.” Id., citing, Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 2204-05 (1975) (“A federal court’s jurisdiction therefore can be invoked only when the plaintiff himself has suffered ‘some threatened or actual injury resulting from the putatively illegal action .... ’ ”). In this action, Reichman has failed to demonstrate any actual or threatened harm from BAA’s approval of affirmative action plans used in the Commonwealth, the adoption of utilization analysis, or the use of affirmative action certificates. Reichman produced no evidence showing how her furlough or any other alleged injury was the result of these practices and policies. Indeed, Reichman was initially hired at BAA despite these practices and subsequently reinstated by the Department of Public Welfare, effective January 30, 1978, within three months of her furlough from BAA, in spite of the continued use of such practices. In Mixon v. Gray Drug Stores, Inc., 81 F.R.D. 413 (N.D.Ohio 1978), the court concluded that an individual who was actually hired by a company had no standing to challenge the company’s hiring practices. Id. at 414, citing, Freeman v. Motor Convoy, Inc., 409 F.Supp. 1100, 1113 (N.D.Ga.1976) (“[P][laintiffs who are present employees and who were never denied employment on account of their race do not have standing to represent a class composed of job applicants who were never hired in any capacity by the defendant.”). Similarly, in Wade v. New York Telephone Co., 500 F.Supp. 1170 (S.D.N.Y.1980), the court maintained: Initially, it is to be noted that whereas the complaint challenges the company’s hiring, promotion and termination practices, it does not allege that plaintiff was herself aggrieved by defendant’s failure to hire or promote her. Plaintiff has standing to challenge only the policies of which she was allegedly the victim-the company’s discharge procedures. Id. at 1179 (emphasis added). See also Lewis v. Bethlehem Steel Corp., 440 F.Supp. 949, 969 (D.Md.1977) (employee lacked standing to challenge the discriminatory effeet of craft determination tests that he did not fail or was not deterred from taking). Reichman, however, contends that since she was responsible for implementing these allegedly discriminatory practices, she is legally liable for any discriminatory effects of such practices and policies. Lewis v. Hyland, 554 F.2d 93 (3d Cir.), cert. denied, 434 U.S. 931, 98 S.Ct. 419, 54 L.Ed.2d 291 (1977). She thus claims that she has “a right to know if she has been required to implement discriminatory policies.” Even if standing can be based on such a unique concept, Reichman has failed to show that her employment actions have resulted in actual or threatened legal action against her. In the absence of such proof, Reich-man demonstrates no injury. While this court recognizes that the primary burden of enforcing Title VII actions rests with private individuals, Romasanta v. United Airlines, Inc., 537 F.2d 915, 918 (7th Cir. 1976), aff’d sub nom., United Airlines, Inc. v. McDonald, 432 U.S. 385, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977), we cannot overlook constitutionally mandated requirements for standing. Accordingly, we dismiss Count I of the complaint for lack of standing. For similar reasons, we must deny Reich-man’s motion for certification of a Rule 23(b)(2) class and to amend complaint to conform to the evidence. Specifically, Reichman seeks to represent the class of “Polish-Americans, Jewish-Americans and other racial and ethnic groups not designated by defendants for the purpose of utilization analysis or preferential affirmative action who have sought employment or may seek employment in the future with the Commonwealth of Pennsylvania and who are adversely affected by defendants’ affirmative action policies and practices.” Although this motion should be denied as untimely, the court also finds that Reich-man has failed to satisfy the requirements of Federal Rule of Civil Procedure 23. Under Rule 23(c)(1), the district court is required to make a class determination “[a]s soon as practicable after the commencement of an action brought as a class action.” In accordance with Rule 83 of the Federal Rules of Civil Procedure, this District has established time limitations upon the filing of a motion for class certification. Pursuant to Local Rule of Court 701.07(c), Within ninety (90) days after filing of a complaint in a class action, unless this period is extended on motion for good cause appearing, the plaintiff shall move for a determination under subdivision (c)(1) of Fed.R.Civ.P. 23, as to whether the case is to be maintained as a class action. In this action, Reichman did not move for a class certification until after the trial on the merits. Clearly, this delay violated the ninety-day requirement. We thus con-elude that the failure to abide by this Local Rule of Court must result in the denial of Reichman’s motion. Kushner v. Winterthur Swiss Insurance Co., 620 F.2d 404, 407-08 (3d Cir. 1980) (appeal dismissed for failure to file an appendix that conformed to court rule). Even if Reichman had filed a timely motion for class certification, the court has determined that she has failed to satisfy the requirements of Rule 23(a). That Rule provides: One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. We are persuaded that the claims of Reich-man are not typical of the claims of the purported class on the basis that we determined that Reichman lacked standing to challenge the practices and policies of BAA regarding affirmative action programs, utilization analysis, and affirmative action certificates. Reichman has not shown how her furlough was the consequence of these allegedly discriminatory practices. Moreover, Reichman seeks to represent a class of people who have sought or may seek employment with the Commonwealth and who are adversely affected by Defendants’ practices. Yet, Reichman has not claimed or proved that she sought employment and was adversely affected by Defendants’ policies and practices. Indeed, as we pointed out, Reichman was hired by BAA and subsequently hired by the Department of Public Welfare in spite of the existence of these allegedly discriminatory practices. In Scott v. University of Delaware, 601 F.2d 76 (3d Cir.), cert. denied, 444 U.S. 931, 100 S.Ct. 275, 62 L.Ed.2d 189 (1979), the Court of Appeals in examining the effect of East Texas Motor Freight, Inc. v. Rodri guez, 431 U.S. 395, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977), held: [I]n this case, Scott concedes that he personally suffered no discrimination when he was hired. Since he was not injured by any allegedly discriminatory hiring practices, it is doubtful after East Texas Motor Freight that he can lead a class challenging the University’s hiring practices. Id. 601 F.2d at 87. In a footnote, the court further observes that “[sjeveral courts have held that a named plaintiff who challenges a defendant’s discriminatory promotion practices may not represent a class contesting the defendant’s hiring practices because these claims are insufficiently similar.” Id. at 87, n.23 (emphasis original). See Abron v. Black & Decker (U.S.) Inc., 654 F.2d 951, 954-55 (4th Cir. 1981). This result is supported by established legal principles A plaintiff may not use the procedural device of a class action to boot strap himself into standing he lacks under the express terms of the substantive law. It must be noted that the question of standing is totally separate and distinct from the question of plaintiff’s right to represent a purported class under Rule 23. While standing to sue is an essential prerequisite to maintaining an action, whether in one’s own right or as a representative of a class, the issues are not convertible. Standing to sue is an essential threshold which must be crossed before any determination as to class representation under Rule 23 can be made. Weiner v. Bank of King of Prussia, 358 F.Supp. 684, 694 (E.D.Pa.1973) (emphasis added). Finally, the court questions whether Reichman can “fairly and adequately protect the interests of the class.” In resolving a similar issue, the Supreme Court reasoned: Apart from the named plaintiffs’ evident lack of class membership, the record before the Court of Appeals disclosed at least two other strong indications that they would not “fairly and adequately protect the interests of the class.” One was their failure to move for class certification prior to trial. Even assuming, as a number of courts have held, that a district judge has an obligation on his own motion to determine whether an action shall proceed as a class action, the named plaintiffs’ failure to protect the interests of class members by moving for certification surely bears strongly on the adequacy of the representation that those class members might expect to receive. We are not unaware that suits alleging racial or ethnic discrimination are often by their very nature class suits, involving classwide wrongs. Common questions of law or fact are typically present. But careful attention to the requirements of Fed.Rule Civ.Proe. 23 remains nonetheless indispensable. The mere fact that a complaint alleges racial or ethnic discrimination does not in itself ensure that the party who has brought the lawsuit will be an adequate representative of those who may have been the real victims of that discrimination. East Texas Motor Freight, Inc. v. Rodriguez, 431 U.S. at 404-06, 97 S.Ct. at 1897-98 (footnote and citations omitted). This court likewise concludes that Reichman’s failure to seek class certification until after trial on the merits demonstrates that Reichman would be an inadequate class representative. B. Racial Discrimination Claim Having disposed of Reichman’s pattern and practice claim, the court now turns to her remaining claims. First, Reichman contends that she was discriminatorily discharged on the basis of her race and color. In a Title VII claim such as this one, Reich-man’s burden of proof is governed by the holding in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). This court examined the impact of Burdine in Allesberry v. Pennsylvania, Civil Action No. 78-433 (M.D.Pa., filed June 30, 1981), and outlined Burdine, as follows: Recently, in Texas Department of Community Affairs v. Burdine, 450 U.S. 248 [101 S.Ct. 1089, 67 L.Ed.2d 207] (1981), the Supreme Court clarified “the basic allocation of burdens and order of presentation of proof in a Title VII case alleging discriminatory treatment,” as set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 [93 S.Ct. 1817, 36 L.Ed.2d 668] (1973). In Burdine, the Court summarized the holding in McDonnell Douglas: First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant “to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. 450 U.S. at 252-53 [101 S.Ct. at 1093-94] (citations omitted). The Court, however, further explained that although intermediate evidentiary burdens exist, “[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Id. at 253, 101 S.Ct. at 1094. Slip. op. at 12-13 (footnote omitted). See also Croker v. Boeing Co., 662 F.2d 975, 990-91 (3d Cir. 1981). The facts necessary to establish a prima facie case of racial discrimination are flexible in Title VII cases and will vary to reflect the differing circumstances of each situation. Applying the model of a prima facie case formulated in McDonnell Douglas to the facts of this action, we believe that Reichman must show by a preponderance of the evidence that (i) she was a White; (ii) she was qualified for the job and satisfied the normal requirements of her employment; (iii) despite her qualifications and performance, she was discharged; and (iv) the employer employed a nonWhite having qualifications no better than Reichman’s qualifications in a position comparable to Reichman’s former position. 411 U.S. at 802, 93 S.Ct. at 1824; Marks v. Prattco, Inc., 607 F.2d 1153, 1155 (5th Cir. 1979); Flowers v. Crouch-Walker Corp., 552 F.2d 1277, 1282-83 (7th Cir. 1977); Oshiver v. Court of Common Pleas, 469 F.Supp. 645, 649 (E.D.Pa.1979). While the court recognizes that the burden of establishing such a prima facie case is not “onerous” nor “overly demanding,” Burdine, 450 U.S. at 253, 101 S.Ct. at 1094; Whack v. Peabody & Wind Engineering Co., 595 F.2d 190, 193 n.11 (3d Cir. 1979), Reichman has not satisfied all the elements of a prima facie case by a preponderance of the evidence. The evidence fails to support a determination that a non-White was employed in a position comparable to Reichman’s former position or that her discharge was otherwise made under circumstances which give rise to an inference of unlawful discrimination. As we indicated, a shift in emphasis from the work performed by the PTA Division to work done by the PRE Division resulted in PTA being reduced from a division to a unit and the position of Chief of PTA, Reich-man’s former position, was abolished. Initially, no one was placed in charge of the PTA Unit and the staff reported to Defendant Sawyer. Ultimately, Iris Cooley, a well-qualified black female, was named supervisor of the unit. Cooley, however, remained an EODS IV during this time period, did not receive any increase in salary, and had fewer responsibilities because of the decrease in PTA staff and duties. Furthermore, the court has concluded that because of the small sample size, Reichman has not established a prima facie case on the basis of statistical evidence. Even if Reichman had established a prima facie case of discrimination, she would have failed to satisfy her ultimate burden of persuasion. In Burdine, the Supreme Court explained the intermediate burden that shifts to the Defendants, as follows: The burden that shifts to the defendant, therefore, is to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason. The defendant need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff’s rejection. The explanation provided must be legally sufficient to justify a judgment for the defendant. 450 U.S. at 254-55, 101 S.Ct. at 1094 (footnotes and citation omitted). The Defendants satisfied this burden of production by clearly setting forth legitimate, nondiscriminatory reasons for discharging Reichman. As the testimony demonstrated, state budget reductions required BAA to furlough employees or reduce expenses by some other method. Defendants examined alternate methods of reducing BAA’s budget through the furlough of three clerical positions and one technical position or the furlough of two management positions. Since BAA was overloaded in management positions and because of a shift in emphasis from the PTA Division to the PRE Division, Defendants determined that the best choice was to abolish the position of Chief of the PTA Division as one of the management positions. Reichman’s furlough was made in compliance with civil service regulations in effect at that time. Reichman, who was an EODS V, was compared with all other employees, who were EODS V, in the Office of Administration (OA) and had regular civil service status. On the basis of the last performance evaluation, the Personnel Officer in OA determined that Reichman should be furloughed instead of Frederick Brooks, the only