evidence which could form the basis for the HE's conclusion against her.
Plaintiff also asserts that she was qualified to be the Director of the Building Services Division. The HE found that plaintiff qualified for this job, but that it had not been determined how or if it would be filled. (Opinion at 17.) She found that because of organizational unrest, no efforts were made to fill the position at the time plaintiff could have been considered for it. The HE relied on testimony which provided substantial evidence for the agency's determination that it was not feasible to offer the position to plaintiff.
Finally, plaintiff asserts that she could have been made the Director of Federal and Community Programs. Little attention has been paid to this position, either in the briefs, the testimony or the opinion. Milhone testified that plaintiff would be qualified for this position, although he stated that it was an 801 series (technical) position. (Tr. vol III at 115.) Of the three GS-15 positions, this was the one for which he did not recommend her. Linda Gregory testified that this was one of the positions which Tribble wanted to put on hold, pending further reorganization, and she also mentioned his preference for engineers. (Tr. vol I at 16.) Plaintiff has not established that she should have gotten this job. Based upon Gregory's testimony, it appears that DOE did not wish to fill the position, and its decision not to do so should be upheld.
Although there was substantial evidence of bias against plaintiff with regard to her civil service claims, the HE chose to credit the DOE's testimony in every instance, and she found a valid reason for each action by the agency. While this Court might have reached a different result, it is not to substitute its judgment for the HE's where there is substantial evidence to support the HE's decision. Given the limited standard of review, the HE's decision must be upheld since it is supported by evidence which can support a reasonable decision.
Plaintiff also filed an administrative complaint with the Office of Special Counsel (OSC) challenging the use of her appraisal. She contends that she requested and should have been given access to the report of the OSC before her MSPB hearing took place. She states that the investigation was completed six months before the report came out, and that the report was withheld because it contained material damaging to the DOE. (See, e.g., Plaintiff's Memo., Exhibit 4 at 7.) Plaintiff urges that because of this, the HE's decision should be set aside, and not remanded, pending trial of her claim of sex discrimination.
Proceedings before the OSC are separate from MSPB claims, and judicial review is "limited, at most, to ensuring compliance with the statutory requirement that the OSC perform an adequate inquiry." Carducci v. Regan, 230 U.S. App. D.C. 80, 714 F.2d 171, 175 (D.C.Cir. 1983). The adequacy of the OSC inquiry is not at issue here. Given the independence of the OSC action, and the lack of conclusive proof in the report, the MSPB decision should not be set aside or remanded for failure to produce the report.
In moving for summary judgment on her claim of sex discrimination, plaintiff asserts that the fact that she was the only person separated from government service in the RIF entitles her to judgment as a matter of law. Even if this fact is sufficient to prove plaintiff's prima facie case, the DOE has raised material issues of fact as to whether there were legitimate, nondiscriminatory reasons for this fact. Therefore, plaintiff's motion must be denied.
The DOE asserts, and plaintiff does not dispute, that the court has no jurisdiction to hear her constitutional claim, since plaintiff is limited to her Title VII remedies for discrimination. (DOE's Memorandum at 11 n.12.) Plaintiff has given no indication that she intends to pursue this claim. Therefore, the DOE's motion will be treated as conceded.
Therefore, in view of the above, it is hereby
ORDERED that plaintiff's motions for summary judgment are denied; and it is further
ORDERED that defendant's motion for partial summary judgment is granted; and it is further
ORDERED that claims pursuant to 5 U.S.C. § 7703(c), 5 U.S.C. § 2302, and the Fifth Amendment to the United States Constitution are dismissed.
Date: January 6, 1989