proposed to rectify in its settlement by offering to classify it. Although the Department ultimately chose to classify it as a GS-13 position, they could have classified the position at GS-12 and reduced the responsibilities of the position. See Cayce v. Adams, 439 F. Supp. 606, 609 n.3 (D.D.C. 1977); see also Shamey v. Administrator, Gen. Serv. Admin., 732 F. Supp. 122, 129 (D.D.C. 1990) (holding that if desk audit reveals employee is performing above designated GS-level, management retains right to reduce his duties, rather than granting GS-level upgrade); Jehle v. Heckler, 603 F. Supp. 124, 127 (D.D.C. 1985) (holding that if classification review determines position is misclassified, government may raise or lower rating of position). Thus, it was never guaranteed that the position would be classified at GS-13.
Plaintiff argues that her situation is analogous to that of a worker who is not being compensated at the same level for doing substantially the same task as another worker because of discrimination by the employer. See, e.g., Jehle v. Heckler, 603 F. Supp. 124 (D.D.C. 1985); Nitterright v. Claytor, 454 F. Supp. 130 (D.D.C. 1978). However, her situation is distinguishable because the positions under consideration in these two cases previously had been classified at the higher level. In Jehle, the plaintiff, a female GS-13 level Program Analyst, argued that she was performing the same duties as a male GS-14 level Program Analyst. The court found that the plaintiff was being paid less than her male counterpart for performing substantially the same work, and awarded a promotion to the GS-14 level. In Nitterright, a female GS-5 level Accounting Technician filed a complaint alleging that two white male employees performing substantially similar duties were receiving compensation at the GS-6 level. The court found that the plaintiff had been discriminated against and granted her a promotion to the GS-6 level, applied retroactively to the date she was hired.
These cases are inapposite to plaintiff's case. While in Jehle and Nitterright the positions in dispute were classified, the position in plaintiff's case was unclassified. Indeed, it was unclear at the time she informally was offered the promotion on a temporary basis that the Department would classify the position at level GS-13, as the Department could have decided to reduce the duties of the position and classify it at the GS-12 level. Thus, the Court finds that she is not entitled to a permanent promotion.
2. The Voluntary Nature of Plaintiff's Move to HDL
Plaintiff contends that she was not provided with full relief because she left her job as Project Manager involuntarily, and was forced to take a GS-12 level position at HDL. Had she been granted a permanent promotion to the GS-13 level in the initial settlement, she would have carried that promotion to her following jobs. Thus, she would have been entitled to a GS-13 level job at HDL.
Two issues must be resolved in deciding whether the plaintiff's decision to leave the Project Manager position was voluntary. First, there is the question of whether she was permitted to be transferred with the Project Manager position when her branch relocated to Huntsville, Alabama, in March 1987. However, plaintiff does not dispute the fact that she voluntarily declined to move, as she did not wish to relocate outside the Washington area. Defendant's Exhibit 7.
The second issue is whether she was forced to take the position at HDL. Plaintiff contends that she was forced to take the position at HDL because the Department threatened to remove her from the Priority Placement Program (PPP) if she refused. However, the record shows that it is a clearly stated policy of the PPP, applicable to all participants, that "if a registrant who does not have severance pay entitlement declines any valid offer, whether outside or within the commuting area, he/she will be removed from PPP."
See Priority Placement Program Eligibility and Registration, DOD 1400.200-1-M. Plaintiff was or should have been well aware of the consequences of her actions at the time she joined the PPP, and thus cannot contend she was forced out with the threat that she would be removed from the program.
Finally, plaintiff contends that the Department delayed the classification of the position, thus denying her the opportunity to weigh the permanent classification in her decision to decline the move to Huntsville, Alabama. Plaintiff's assertion is unsubstantiated. The Department initially promised to classify the Project Manager position in May 1987 and assigned it GS-13 status in September 1987. Although the record indicates that the agency could have acted more swiftly in classifying the position, there is no evidence that the Department deliberately chose to delay the classification. Furthermore, in her initial reply to the offer to move, plaintiff clearly stated that she did not wish to relocate outside the Washington area. This indicates that she was more concerned about her location than maintaining her current salary at the GS-13 level, which she would have been paid had she chosen to move to Huntsville. Hence, her assertion that she might have chosen to go to Huntsville had the classification been completed more rapidly is not supported by the record.
3. Attorney's Fees
Plaintiff also asserts that she was not provided full relief because she was not awarded attorney's fees under 29 C.F.R. 1614.501(e).
It is undisputed that an award of attorney's fees for work performed before the filing of the formal complaint is not mandated. Rather, an offer of full relief must provide for the payment of reasonable attorney's fees only for work done between the time the formal complaint is filed and the time the complaint is cancelled. 29 C.F.R. § 1614.501(e)(iv). Therefore, the question before the Court is whether plaintiff was entitled to attorney's fees for legal work done between the time the formal complaint was filed and the time it was cancelled, even though the informal settlement offer -- which was made prior to the filing of the formal complaint -- otherwise constituted full relief. The Court finds that, under these circumstances, "full relief" does not include recovery of attorney's fees.
Under defendant's interpretation of 29 C.F.R. § 1614.501(e), which the Court finds persuasive, a complainant should be reimbursed for attorney's fees for the period covering the formal complaint process only if the informal offer rejected by the complainant did not constitute "full relief." If it turned out that the informal offer did constitute "full relief," the complainant should be denied attorney's fees for the formal complaint period. The effect of this interpretation would be to deny complainants who actually were awarded "full relief" during the informal process any claims to attorney's fees incurred during the formal process. This interpretation thus serves the interest of deterring the filing of frivolous formal complaints.
The Court recognizes that, on the other hand, a complainant may not know if his award is insufficient -- and that he could recover attorney's fees for the formal complaint period -- until after the formal complaint is adjudicated. Thus, complainants unsure of the sufficiency of their award might be hesitant to file a formal complaint, as they might not recover attorney's fees. To ensure recovery of attorney's fees, some complainants may forego informal settlement and proceed directly to the formal complaint process, for which attorney's fees clearly are recoverable under 29 C.F.R. § 1614.501(e).
Although this interpretation of the law may create an incentive for plaintiffs to forego informal settlement altogether, the Supreme Court has supported an interpretation of a law which created similar incentives.
North Carolina Dep't of Transp. v. Crest Street Community Council, Inc., 479 U.S. 6, 93 L. Ed. 2d 188, 107 S. Ct. 336 (1986). The ruling in that case created an incentive to file protective suits in federal court to ensure an award of attorney's fees, while simultaneously pursuing an administrative solution. The Supreme Court limited the award of attorney's fees to parties who found it necessary to file a complaint in federal court in order to obtain relief for their Title VII claims. Id. at 14. Although the Supreme Court acknowledged this interpretation might create an incentive to file protective suits which could result in the further clogging of federal courts, the Court found that "competent counsel will be motivated by the interest of the client to pursue . . . administrative remedies when they are available and counsel believes that they may prove successful." Id. at 14-15. The Court also reasoned that it could not base its interpretation of a statute on the assumption that "an attorney would advise the client to forgo an available avenue of relief solely because [the statute] does not provide for attorney's fees." Id.
In this case, the creation of an incentive to forgo the informal proceedings is not sufficient to outweigh the interest served by denying recovery of attorney's fees where the informal settlement offer otherwise constitutes "full relief." Thus, the Court rejects plaintiff's argument that "full relief" must include attorney's fees.
For the foregoing reasons, the Court grants defendant's motion for summary judgment and denies the plaintiff's motion for summary judgment.
Stanley S. Harris
United States District Judge
Date: JAN 31 1995
For the reasons stated in the accompanying Opinion, it hereby is
ORDERED, that plaintiff's motion for summary judgment is denied. It hereby further is
ORDERED, that defendant's motion for summary judgment is granted.
Stanley S. Harris
United States District Judge
Date: JAN 31 1995