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ALLEN v. WEST

January 31, 1995

GLADYS M. ALLEN, Plaintiff,
v.
TOGO D. WEST, JR.,1 Secretary of the Army, Defendant.



The opinion of the court was delivered by: STANLEY S. HARRIS

 This matter comes before the Court on plaintiff's and defendant's cross-motions for summary judgment. Upon consideration of the entire record, the Court grants defendant's motion for summary judgment and denies plaintiff's motion.

 Summary judgment may be granted only if the pleadings and evidence "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). All evidence and the inferences to be drawn from it must be considered in a light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Summary judgment cannot be granted "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Although "findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56," the Court nonetheless sets forth its reasoning. Fed. R. Civ. P. 52(a).

 Background

 Plaintiff, a 53-year-old black female, alleges that the Department of the Army ("Department") discriminated against her while she was employed as a Project Manager under the Federal Managers Financial Integrity Act ("FMFIA"). Before becoming Project Manager, plaintiff worked as a Systems Accountant for the Army Corps of Engineers in Washington, D.C., compensated at a GS-12 pay grade. On October 1, 1986, plaintiff was assigned the duties of Project Manager and continued to be compensated at the GS-12 level. At that time, the Project Manager duties had not been put into writing nor had the position officially been classified.

 While in that position, plaintiff learned that the two white males who preceded her as Project Manager were compensated at the GS-13 level. On February 6, 1987, she consulted with an Equal Employment Opportunity ("EEO") counselor and filed an informal grievance with the Department, charging race, sex, and age discrimination. *fn2" She requested a temporary promotion to the GS-13 level that would apply retroactively to October 1, 1986, with backpay from that date.

 On May 26, 1987, the Department responded with an informal offer which included: (1) a temporary promotion to the GS-13 level, retroactive to October 1, 1986, which would continue until the position was properly classified; (2) backpay from October 1, 1986, until the position was properly classified; and (3) submission of the duties and responsibilities of the position to the appropriate authorities for proper classification and assignment of the proper grade. Plaintiff did not accept this settlement because she did not believe the offer constituted "full relief." *fn3" Despite her refusal to accept the settlement, on May 26, 1987, the Department granted her the temporary promotion with backpay retroactive to October 1, 1986. *fn4"

 Plaintiff then was transferred to Harry Diamond Labs ("HDL") in June 1987, and placed in a level GS-12 position. This position, though not with FMFIA, was still within the Department. On July 14, 1987, the Department notified plaintiff that her informal complaint had been dismissed. As a result, on July 20, she filed a formal EEO complaint, charging race, sex, and age discrimination, and requesting a retroactive promotion to the GS-13 level and an award of attorney's fees and expenses. *fn5" On August 25, 1987, the U.S. Army Civilian Appellate Review Agency ("USACARA") notified the plaintiff that her EEO complaint had been accepted for processing in accordance with 29 C.F.R. § 1613.214. In a Final Army Decision ("FAD") issued on November 2, 1987, her complaint was cancelled for "failure to prosecute" because the remedies sought -- a temporary promotion to GS-13 and an award of backpay -- already had been granted in accordance with EEOCCRA Bulletin Volume IV, #1, Section III A. *fn6"

 On November 12, 1987, plaintiff appealed the Agency's FAD to the Equal Employment Opportunity Commission Office of Review and Appeals ("EEOC ORA"). On March 17, 1988, the EEOC ORA affirmed the decision, holding that "the agency had offered appellant complete relief" because there was no evidence that "she requested a permanent rather than a temporary promotion to GS-13." ORA Opinion at 2.

 Plaintiff subsequently filed a request for the EEOC ORA to reopen and reconsider her complaint on April 16, 1988. On October 18, 1988, the EEOC ORA denied her request because her "voluntary" decision to transfer to HDL rendered her ineligible to receive any more relief, as she was no longer working at the position in dispute.

 On November 21, 1988, plaintiff filed this action seeking to reopen her complaint on the grounds that she did not receive full relief. Plaintiff also disputed the voluntary nature of her decision to move to HDL, contending that she accepted the position because she was informed that "if she declined the position [she] would be out of the DOD Priority Placement Program." Affidavit of Gladys M. Allen.

 On May 6, 1991, the Court granted the Department's motion for summary judgment because "plaintiff was provided all of the relief she requested in her equal employment opportunity complaint." Order at 1 (filed May 6, 1991). On appeal, the Court of Appeals reversed and remanded the case for determination of whether plaintiff was granted "full relief" as defined by EEOC precedent. Allen v. Stone, 1993 U.S. App. LEXIS 4385, No. 91-5207, Judgment & Memorandum (D.C. Cir. March 1, 1993) (unpublished opinion). In addition to requesting a general determination of what constituted "full relief," the Court of Appeals highlighted two issues for consideration: (1) whether plaintiff deserved a permanent promotion to the GS-13 level; and (2) whether she voluntarily left her position as Project Manager.

 Plaintiff now moves for summary judgment on the grounds that her formal discrimination complaint should be reinstated and that she is entitled to an award of attorney's fees and costs. Defendant moves for summary judgment on the grounds that the complaint ...


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