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Franklin-Mason v. Johnson

March 29, 2006

ROXANN J. FRANKLIN-MASON, PLAINTIFF,
v.
HANSFORD T. JOHNSON, ACTING SECRETARY OF THE NAVY, DEFENDANT.



The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge

REPORT AND RECOMMENDATION

The case is before me for a Report and Recommendation on defendant's Motion for Partial Summary Judgment.*fn1 For the reasons stated below, I recommend that plaintiff's motion be denied.

I. BACKGROUND

On October 31, 1996, plaintiff, an African American female, brought a Title VII action against her former employer, the United States Navy, in the United States District Court for the District of Columbia. In Civil Action No. 96-2505, plaintiff claimed that defendant discriminated against her on the basis of her race and gender by not giving her a position for which she believed she was qualified and for which she applied. Although that case settled on April 7, 1999, I recently issued my Report and Recommendation on plaintiff's motion to enforce the terms of the agreement and for sanctions.

In the current case, Civil Action No. 03-945, plaintiff alleges that she was retaliated against because she brought a Title VII action, both at the administrative level and in this Court.*fn2 Specifically, plaintiff claims that she suffered the following seven acts of retaliation for attempting to enforce the terms of the settlement agreement: 1) she was denied the restoration of certain leave, 2) she was moved to a smaller cubicle, 3) she was subjected to harassment about the amount of leave she was taking, 4) she was denied training, 5) she was not given performance appraisals, and 6) she was threatened with disciplinary action.*fn3

II. PLAINTIFF'S CLAIMS

The "Use or Lose" Leave Claim. A leave year runs from the first day of the first full biweekly pay period in a calendar year until the day just before that same day of the next calendar year. Defs. Mem., Ex. C at 1. Employees of the Military Sealift Command ("MSC") may carry over a set amount of accrued annual leave to the next leave year. Id. Any leave over and above that set amount must be used by the end of the leave year, or it will be lost. Id. at 2. Under certain circumstances, leave that was forfeited may be restored if it was scheduled in writing prior to the beginning of the third biweekly pay period prior to the end of the leave year. Id. Such a decision is discretionary on the agency's part. Id.

In January of 2002, plaintiff noticed that her leave and earnings statement indicated that she had nineteen hours of "use or lose" leave from the previous leave year. Complaint ("Compl.") ¶ 13; Defs. Mem. at 2. On February 8, 2002, plaintiff submitted a request for leave restoration. Plains. Opp., Ex. 12. On February 25, 2002, Captain Penix*fn4 denied plaintiff's request because it was not submitted by January 31, 2002, the applicable deadline. Plains. Opp., Ex. 10-11.

The Office Cubicle Claim. In October of 2001, the Naval Fleet Auxiliary Force Office ("NFAF") was reorganized. Compl. ¶ 14; Defs. Mem. at 3. As a result of the reorganization, plaintiff's office was moved from one cubicle to another. Defs. Mem., Ex. E at 106. See also Plains. Opp., Ex. 3-4.

The Leave Inquiries Claim. On November 14, 2001, plaintiff sent Barron Nelson*fn5 and Captain Penix an e-mail about her work schedule for the upcoming week. Plains. Opp., Ex. 6. Penix responded by e-mail to plaintiff's message on November 26, 2001, asking that she resubmit her schedule as he had not received it. Id.

In 2002, plaintiff was on an alternative work schedule. Defs. Mem., Ex. G at 1. As a result, she was off every other Monday, but worked one extra hour per day from Tuesday through Friday. Id. In January of 2002, plaintiff exchanged multiple e-mails with Penix regarding the fact that she would be taking certain time off. Id. at Ex. 8-9. That month, plaintiff took 37 hours of annual leave and 16 hours of sick leave. Id. at 3.

In February of 2002, plaintiff took 39 hours of annual leave and 5 hours of sick leave. Id.

In March of 2002, plaintiff took 8 hours of annual leave and 135 hours of sick leave. Id. at 4.

On September 5, 2002, Penix wrote plaintiff's attorney a letter explaining why plaintiff's request for advanced paid leave was being denied and expressing his concern about the amount of leave plaintiff had ...


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