The opinion of the court was delivered by: PRATT
John H. Pratt, United States District Judge.
This matter was tried de novo by the Court on May 8, 9 and 10, 1989, as required by Chandler v. Roudebush, 425 U.S. 840, 96 S. Ct. 1949, 48 L. Ed. 2d 416 (1976). The Court, having considered the testimony of the witnesses, all exhibits admitted in evidence, the proposed findings of the parties, and the applicable law, makes the following findings of fact and conclusions of law:
1. This case was brought pro se on June 2, 1987, pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-2000e-17 (Title VII), the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621-634 (ADEA), and the Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d)(1). On December 9, 1988, plaintiff's counsel, Joel Bennett, filed an amended complaint alleging discrimination and reprisal in plaintiff's employment.
The three major issues that we expect to be pursuing are the failure of the agency to promote the plaintiff after a desk audit was conducted showing that she was doing grade-13 work; the selection and transfer of a Mr. Dorman, D-o-r-m-a-n, to a grade-13 position within the agency when the plaintiff was better qualified for that position and should have been promoted; and the selection of Ms. Brooks for another grade-13 position. And we expect to prove that that was preselection and also discrimination and reprisal against the plaintiff.
3. These events allegedly occurred while plaintiff Shamey was employed at the Office of Real Estate Policy and Sales (DR), Federal Property Resources Service (FPRS), General Services Administration (GSA). The sex (female) discrimination allegedly has been on-going in GSA since 1978, the retaliation since late 1984, and the age discrimination since 1987.
4. Plaintiff Shamey is over 40 years old and a female citizen of the United States whose parents emigrated from Syria. She started her government career doing research in the United States Department of Agriculture (USDA) at the grade-9 level after she earned a Master of Science degree. Plaintiff Shamey, besides Bachelor and Master of Science degrees, also has a Doctor of Philosophy degree. She has taken numerous real estate courses, became a licensed real estate salesperson in 1976, and a broker in 1978. By 1984, she had most, and perhaps all, of the courses required to be warranted as a contracting officer for the U.S. Government. She has taught at the high school and college levels. She was promoted to the grade-11 level after eight years when she decided to leave her job at USDA to return to school to improve her credentials for doing research at USDA. After she earned her Ph.D., USDA would not rehire her.
5. Plaintiff worked for the USDA as a GS-9 until February 13, 1978, when she was hired by the Federal Supply Service, a part of GSA, as a chemist, GS-11. She was reassigned later, on October 19, 1979, as a Commodity Management Specialist, also GS-11. This reassignment was not subject to a merit promotion plan because it was a change from a position having no known promotion potential to a similar position. On October 31, 1982, plaintiff started working for DR, FPRS, where she is presently a GS-12 Realty Specialist.
6. Immediately following her October 19, 1979, reassignment, plaintiff filed a series of complaints. She filed her first complaint against GSA with the Equal Employment Opportunity Commission (EEOC) on October 29, 1979, claiming GSA had discriminated against her on the basis of sex because she had not been hired initially at the GS-12 level in February 1978. A Hearing Examiner affirmed GSA's proposed finding, which determined that Shamey did not qualify for the GS-12 position because of lack of experience and education. A final agency determination of no discrimination issued on February 17, 1982, and the case was closed on February 23, 1982. The EEOC affirmed the final agency decision by an undated letter.
7. On August 12, 1981, Shamey filed her second EEO complaint within GSA, alleging discrimination on the basis of national origin, sex, and handicap. She claimed she was handicapped because of her advanced education, and that her mental skills were too highly developed for the agency. GSA rejected the complaint because it was not timely filed. Shamey took no further action on this complaint.
9. On March 14, 1983, plaintiff, now a GS-12 at DR, FPRS, requested to be detailed to the Eastern Division within the Office of Real Property (DRE). The detail was not to extend beyond July 11, 1983, and was officially terminated on August 28, 1983. On that day Shamey was reassigned to the Western Division, Office of Real Property (DRW).
10. For approximately six months after Shamey was reassigned to DRW, she worked almost exclusively on the National Advertising contract. Earl Jones, then Assistant Commissioner for Real Property Disposal, recommended that her performance be recognized, and as a result plaintiff was awarded a one time, special cash award in the amount of $ 1,500 for the work she performed on the advertising contract. Jones, the Commissioner of FPRS, testified that he had hoped the award would act as an incentive for plaintiff to appreciate the fact that the agency recognizes good work.
11. On February 12, 1985, Shamey filed her first EEO complaint against the Office of Real Property, and her fourth within GSA. At this time, Shamey had been in the Office of Real Property approximately 27 months, and in the Western Division 17 months. She alleged discrimination on the basis of her sex. She charged: that she was changed from being the case officer on Guam and Hawaii, and assigned Region 10 and that a male replaced her as case officer on Guam and Hawaii; that a pattern of actions during the period 1980-1984, including non-promotions, existed which evidenced discrimination against her; that her duties as Region 10 case officer were at a GS-13 level but she had not been promoted from GS-12 to GS-13; and that her performance had been improperly rated. She requested a desk audit to determine the grade level of her performance.
12. On July 11, 1985, Shamey filed her second EEO complaint against the Office of Real Property, and her fifth within GSA. She alleged discrimination on the basis of national origin, sex, and reprisal. She stated four grounds inter alia : that she was denied promotion after the desk audit; that she had been placed in absent without leave status (which was later removed after she provided medical documentation); that she had been prohibited from using GSA's equipment for personal typing; and that she had been advised to notify her supervisor if she was engaged in outside employment.
13. As a result of plaintiff's desk audit, and prior to the filing of her July 11, 1985, complaint, assignments for GS-12 Realty Specialists in DRE and DRW, who performed work substantially similar to plaintiff's, had been adjusted so that only GS-13s and above provided policy guidance, and GS-12s and below would discuss only other aspects of disposal matters with regional personnel. GSA rejected plaintiff's July 11, 1985, EEO complaint, and plaintiff appealed to the EEOC. Shamey v. General Services Administration, EEOC Appeal No. 01860598. The failure of defendant to promote plaintiff after the desk audit is the first of the three issues which plaintiff's counsel stated that he expected to pursue.
14. On September 3, 1985, plaintiff filed her sixth EEO complaint within GSA, alleging discrimination on the basis of sex, national origin, and reprisal. She alleged that management failed to approve her requested change of duty hours. The complaint was rejected on October 4, 1985, because the shorter hours requested were in violation of applicable personnel regulations.
15. One month later, on October 2, 1985, Shamey filed her seventh EEO complaint within GSA, alleging discrimination on the basis of national origin, sex, and reprisal for previous filed complaints, again because management failed to comply with her request to change her duty hours. This complaint was cancelled for failure to prosecute after she and her attorney failed to respond to a request for further information. Plaintiff did not appeal GSA's cancellation of her complaint to the EEOC.
17. The second complaint filed on November 18, 1985, alleged that she had been advised by Frank Roche, who was then acting as her immediate supervisor, that her position would always be a GS-12. This complaint also contained an almost verbatim recount of the matter she complained of in her February 12, 1985, EEO complaint. GSA likewise rejected this complaint, determining that her GS-12 slot had no promotion potential, and that her only possibility for promotion was to move into another position by competitive application; thus, she had suffered no injury and was not threatened with future harm. Plaintiff did not appeal the Final Agency Decision to the EEOC. These allegations are not contained in her amended complaint in this action.
18. On December 20, 1985, Shamey filed her tenth EEO complaint within GSA, and her seventh in 1985, alleging discrimination on the basis of national origin, sex, and reprisal for her previous filed complaints. She alleged that three memoranda received in the Central Office from the region, which complained about her performance and which had not been previously revealed to her, had been secretly used against her by management.
19. GSA accepted this complaint for investigation. The complaint, however, was cancelled on August 26, 1986, for failure to prosecute, because Shamey would not respond to the investigator's, and GSA's, repeated requests for information. Plaintiff, on December 4, 1986, appealed GSA's cancellation of her complaint to the EEOC. The EEOC dismissed her appeal as untimely. Shamey v. General Services Administration, EEOC Appeal No. 01870628. The agency granted plaintiff's petition to reopen the matter. EEOC then affirmed the agency decision on May 28, 1987.
20. On January 10, 1986, plaintiff filed her eleventh EEO complaint within GSA, alleging that management discriminated against her by reassigning Thomas Dorman, a male formerly employed by FPRS but then employed by Public Building Service (PBS), another service within GSA, into a GS-13 slot, rather than announcing the position for competition. Shamey v. General Services Administration, EEOC Appeal No. 01870579. Plaintiff discovered the reassignment on July 15, 1985, and the transfer became effective on July 21, 1985. Although plaintiff did not contact an EEO counselor until August 26, 1985, more than thirty days after the alleged discriminatory event, GSA did not reject this complaint as untimely. GSA, however, did reject plaintiff's January 10, 1986, complaint on the grounds that Shamey had suffered no harm. Plaintiff appealed to the EEOC, and on May 27, 1987, the EEOC issued a decision requiring GSA to investigate the alleged discriminatory reassignment. Accordingly, GSA investigated these allegations. Plaintiff did not appeal the EEOC decision within thirty days to this Court. The selection and transfer of Thomas Dorman is the second of the three issues which plaintiff's counsel stated that he expected to pursue.
21. While Shamey was absent on leave without pay (LWOP), FPRS was reorganized. The Western Division, her last official assignment, was abolished. Shamey was reassigned to the Surveys and Compliance Division (DRS) effective October 1, 1986. Shamey remained in the same grade, step, and occupational code, and changed from a position having no known promotion potential to a similar position.
23. On July 7, 1987, Shamey filed her thirteenth, and so far, her last EEO complaint within GSA. She alleged that the competitive promotion of Sandra Brooks, instead of Shamey, to a GS-13 Program Analyst position, Series 345, was an act of reprisal against Shamey for having previously filed EEO complaints. Shamey also alleged that she had been qualified in the past for positions that had been denied her, and that candidates had been pre-selected for positions. GSA accepted for investigation the portion of her complaint which related to the most recent competitive announcement, and rejected those portions which related to matters occurring more than thirty days before the filing of her complaint. Shamey did not appeal the rejected portions of her complaint to the EEOC. The competitive selection of Brooks to a GS-13 position is the third of the three issues which plaintiff's counsel stated that he planned to pursue.
24. Based on the above facts, it is an understatement to say, and we so find, that plaintiff, Jennie Shamey, is an inveterate filer of discrimination complaints. She comes before this Court with some sixteen or more EEO complaints having been filed against various federal agencies since 1977.
25. Plaintiff's complaints mix serious allegations of discrimination in promotion and hiring, see July 8, 1987, EEO complaint, with essentially frivolous matters, such as not being "recognized" in a GSA internal newspaper, and not being permitted to end her work day at 2:00 p.m., in contravention of personnel regulations, so that she can seek outside employment.
26. When GSA has accepted an EEO complaint and initiated an investigation, plaintiff has frequently failed to prosecute it. When she received a special award for outstanding performance, she complained of discrimination because "the award was handed to me unceremoniously in a very brief private meeting . . .", when one year after her award another individual's accomplishments "are trumpeted [sic] by Earl Jones in award speeches before a vast audience. . . ."
27. There was considerable evidence presented at trial which detailed plaintiff's abrasive and combative personality and inability to work with her superiors as well as employees at her own level. Defendant's witness Earl Jones, Commissioner of FPRS, testified that the Director of the Eastern Division came to him and said: "You must remove Ms. Shamey from my division . . . she's disrupting the entire organization . . . would you please remove her." When Mr. Jones transferred plaintiff to the Western Division, where she was under the direction of John Neale, at least three employees who were assigned to work with plaintiff on a particular project informed Mr. Neale, within a very short period of time, that they were unable to do so. According to Mr. Jones, in his almost twenty-seven years with GSA, he has never experienced a situation like the one in this case.
28. Defendant's witness John Neale, Assistant Commissioner, Office of Real Estate Policy and Sales, testified that plaintiff's inability to get along with other employees caused very difficult problems for management because the programs involved considerable interaction with other personnel. When asked by the Court if plaintiff's inability to get along with others was limited to people in supervisory positions or extended to persons at her own level, he responded:
She's had extreme difficulty there as well. She's had difficulty dealing with the people she worked with in the Boston Region and the San Francisco Region and the Seattle Region. She had difficulty in the Eastern Division where the Supervisor requested that . . . her detail be denied because of her disruption of the immediate office as well as problems with the region.
She's had other problems with the people in the advertising contract. There were several people supposed to work with her as a team, her peers, and that didn't work out. It just seems she has difficulty working with other people.
Tr. Vol. II, at 132-33. The above testimony, to which we attach complete credence, also reveals that plaintiff's inability to get along with others has involved a great number of people in various positions and offices around the country. We find that plaintiff possesses a combative personality which has ...