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WILLIAMS v. SECRETARY OF THE NAVY

May 10, 1994

MARY WILLIAMS, Plaintiffs,
v.
SECRETARY OF THE NAVY, Defendant.



The opinion of the court was delivered by: EUGENE H. NICKERSON

 NICKERSON, District Judge:

 Plaintiff, Mary Williams, brought this suit under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Civil Rights Act of 1991, Pub. Law 102-166; the Equal Access to Justice Act, 28 U.S.C. § 2412; and the Back Pay Act, 5 U.S.C. § 5596, against defendant, the Secretary of the Navy, for a determination of the amount of attorneys' fees and back pay to which she is entitled after a settlement of her employment discrimination claim. The court has jurisdiction under 42 U.S.C. § 2000e-16, providing for civil actions pursuant to Title VII, and 28 U.S.C. § 1331.

 I

 The undisputed facts are as follows.

 Plaintiff, a black woman, was an employee of the Navy Exchange Service Command (Navy Exchange) for 21 years. Throughout her career she has never received an evaluation below "good." In April 1990 she was made supervisor of the Navy Lodge Reservation in Lakehurst, New Jersey. In the fall of that year she asked an employee under her supervision to co-sign a personal loan from a financing company. After several requests the employee did so.

 In December of the next year plaintiff defaulted on the loan. Eventually the financing company sued the co-signing employee for collection. That employee told a friend in the Navy Exchange about it. That person told others, who in turn told a commander. The commander interviewed the co-signing employee, met with plaintiff, and determined that plaintiff should be subject to an emergency suspension without pay and termination.

 In April 1992 plaintiff was terminated for "unacceptable supervisory conduct." Plaintiff, who had considered the co-signer a friend, felt the punishment too severe. She had never received training as a supervisor and believed that to be a contributing factor in her errant behavior.

 In accordance with the procedures established by the Secretary of the Navy, plaintiff was entitled to bring an Adverse Action Appeal to challenge procedural irregularities in her termination. She filed a timely notice of such an appeal. She also filed with the Equal Employment Opportunity (EEO) Office an informal discrimination complaint, alleging discrimination based on race, color and sex. She repaid the co-signing employee the amount of the loan and legal fees.

 On receipt of the notice of appeal, the Navy Exchange advised plaintiff's attorney that plaintiff "must choose either the administrative appeals procedure or the EEO procedures, but she cannot pursue her appeal via both avenues." Letter from John J. Lyons, Manager, Labor/Employee Relations Branch, to Valerie A. Voorhees, dated May 6, 1992. This limitation was based on Office of Civilian Personnel Management Instruction 12713.2, which provides, at paragraph 14(a):

 
If an allegation of discrimination is raised by a covered employee at any stage of the administrative grievance procedure, the deciding official will inform the grievant in writing that introduction of the allegation will serve to terminate processing of the matter under the Department of the Navy Grievance System, CPI 771.

 Although she protested that this bifurcation of the appeals process was improper, plaintiff's attorney eventually decided to go ahead with the Adverse Action Appeal and then to bring a formal EEO complaint.

 While preparing for the Adverse Action Appeal she called an EEO officer to tell him of strong evidence of discrimination and to recommend a speedy settlement. He responded that he could do nothing unless there was evidence "in the record." Declaration II of Valerie A. Voorhees in Support of Plaintiff's Motion for Attorneys' Fees at 3-4.

 Plaintiff therefore included discrimination evidence in the Adverse Action Appeal in order to get it "into the record as soon as possible." Id. She did so knowing that evidence of discrimination would technically be deemed irrelevant to the appeal. In his report and recommendation recommending that plaintiff be reinstated, the hearing officer found the evidence of discrimination irrelevant, but he referred to it and considered some of the allegations serious enough to recommend that defendant investigate them.

 The hearing officer's recommendation that plaintiff be reinstated, with a formal letter of counselling and a ten-day suspension without pay, was accompanied by a recommendation that supervisors sign statements saying they had read certain guidelines and receive training prior to being made supervisors.

 While awaiting the hearing officer's report, plaintiff filed a formal EEO complaint saying that during her employment she was treated unfairly based on her race and sex and that she was terminated due to her race and sex. An EEO officer accepted for investigation plaintiff's discrimination claims as to disparate training and guidance and the like, but refused to hear charges of disparate treatment in her discharge on the ground that she had brought the Adverse Action ...


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