Fogg v. Reno Brief for Plaintiff-Appellant Matthew F. Fogg

    SCHEDULED FOR ORAL ARGUMENT 
MONDAY, MARCH 19, 2001

In The

Snitch States (Emtrt of Appeals
for the

Sistrict of (Columbia (Grant
No. 00-5138

M ATTHEW  F. FOGG,

Plaintiff-Appellant,

v.

JANET RENO, Attorney General o f  the United States,

Defendant-Appellee.

On Appeal from the United States District Court 
fo r the District o f  Columbia

BRIEF FOR PLAINTIFF-APPELLANT 
MATTHEW F. FOGG

Fr a n k  J. Co s t e l l o *
Sc o t t  M. Z im m er m a n

ZUCKERT, SCOUTT & RASENBERGER, LLP
Attorneys for Plaintiff-Appellant
Matthew F. Fogg
888 17th Street, NW
Suite 600
Washington, DC 20006-3959 
(202)298-8660

November 20, 2000 

*Counsel of Record

COUNSEL PRESS, LLC (202)783-7288 * (888)277-3259



Certificate As To Parties, Rulings And Related Cases

Parties and Amicus

The parties consist solely of Appellant Matthew F. Fogg and Appellee Attorney General 

Reno, as the highest official of the United States Marshals Service. By Order filed July 12,

2000, The NAACP Legal Defense and Educational Fund, Inc., a not-for-profit corporation 

organized under the laws of the state of New York, was granted leave to file a Brief Amicus 

Curiae in support of Appellant.

Rulings Under Review

The rulings under review in D.D.C. Case No. 94-CV-2814 are: (i) the Order by Judge 

Thomas P. Jackson on March 30, 1998 granting Defendant/Appellee s motion for partial 

summary judgment on the non-discrimination issues (App. A40); (ii) the Memorandum and 

Order by Judge Thomas P. Jackson on July 1, 1999 granting Defendant/Appel lee’s motion for 

remittitur of the verdict and rejecting the advisory verdict of the jury as to allegations of racially 

discriminatory conduct prior to November 21, 1991 (App. A45); and (iii) the Order by Judge 

Thomas P. Jackson on February 25, 2000 denying in substantial part Plaintiff/Appellee s motion 

for equitable relief (App. A52).

Related Cases

The case previously was before this Court in No. 99-5299 on appeal from the district 

court’s Memorandum and Order of July 1, 1999. By Order dated December 15, 1999, this Court 

dismissed that appeal as premature. A cross-appeal by Appellee (No. 00-5168), which had been

i



consolidated with this case, was dismissed, upon Appellee s motion, by Order dated June 26, 

2000. There are no other related cases.

Attorney of Record for Plaintiff/Appellant, 
Matthew F. Fogg

ii



Table of Contents

Certificate as to Parties, Rulings, and Related Cases..........................................................  i

Table of Authorities.........................................................................................................  vi

Glossary...............................................................................    x

Jurisdiction...............................................................................................................................  1

Pertinent Statutes and Regulations........................................................................   1

Statement of the Issues Presented for Review.....................................................................  1

Statement of the Case..................................................................    2

Nature of the Case......................................................................................................  2

Course of Proceedings..............................................................................................  2

Disposition Below...................................................................................................... 3

Statement of Facts..................................................................................................................  4

Background....................................................................................   5

Pre-1991 Act Actions................................................................................................  5

Post-1991 Act Actions.................................................................................    7

Aftermath...........................................................................................................   10

Summary of Argument.......................................................................................................... 10

Argument................................................................................................................................  13

I. THE SECTION 1981a CAP ON COMPENSATORY DAMAGES 
SHOULD BE APPLIED PER CAUSE OF ACTION RATHER 
THAN PER CASE....................................................................................................  13

A. The Language Of Section 1981a Does Not Address Whether 
The Cap On Damages Should Be Applied On A Per Cause Of 
Action Or A Per Case Basis........................................................................  13

Page

iii



Page

B. The Legislative History Is Clear: The Cap On Damages Is To
Be Applied Separately To Each Cause of Action...............................  16

C. The EEOC Has Interpreted The Damages Cap As Applying
To Each Cause Of Action. Deference Is Due That Interpretation.... 19

D. A Cap On Damages Applied To Each Cause Of Action Is 
Consistent With The Purpose And Structure Of The Civil Rights
Acts of 1964 and 1991...........................................................................  20

II. THE DISTRICT COURT’S REFUSAL TO GRANT PROSPECTIVE 
EQUITABLE RELIEF WAS INCONSISTENT WITH THE BINDING 
JURY VERDICT AND WRONG AS A MATTER OF LAW ......................  23

III. DEPUTY FOGG’S DISMISSAL, ASIDE FROM VIOLATING 
TITLE VII, ALSO WAS PROCEDURALLY INVALID. THE 
CONTRARY FINDING OF AN MSPB ADMINISTRATIVE LAW 
JUDGE WAS ARBITRARY AND CAPRICIOUS, AN ABUSE OF 
DISCRETION, NOT SUPPORTED BY SUBSTANTIAL EVIDENCE
AND OTHERWISE NOT IN ACCORDANCE WITH LA W ......................  27

A. There Was No Lawful Basis For The Dismissal...................................  28

1. The USMS did not identify the specific position that 
would accommodate Deputy Fogg’s disability and
permit a fitness-for-duty psychiatric examination.......................  28

2. Deputy Fogg was under no obligation to obey an 
ultra vires order to report for a psychiatric fitness-
for-duty examination.......................................................................  31

B. There Is No Evidence That Deputy Fogg Willfully and Intentionally
Refused To Report For A Fitness-For-Duty Examination....................  32

3  3

C. The USMS Failed To Give Adequate Consideration To The 
Requisite Mitigating Factors In Determining The Applicable 
Penalty For Deputy Fogg’s Alleged Insubordination.............



Page

IV. THE DISTRICT COURT’S FINDINGS WITH RESPECT TO THE 
DISCRIMINATORY CONDUCT OF THE USMS FROM 1985 
THROUGH NOVEMBER 1991 ARE CLEARLY ERRONEOUS..............  36

A. The Burden On Deputy Fogg Was To Prove That The Reasons 
Proffered By The USMS For Its Discriminatory Conduct Were 
Not Credible. Evidence O f A Hostile Work Environment, When 
Paired With The Facts Of A Discriminatory Action, Meets
That Burden................................................................................................  37

B. The Patent Racial Hostility Within The USMS And The Facts 
Of The Numerous Individual Discriminatory Acts Taken Against
Deputy Fogg Establish Pretext.................................................................  38

1. Racially hostile work environment prior to
November 21, 1991........    38

2. The Hein reprimand and Deputy Fogg’s removal 
from the Welch/Columb Task Force and transfer
to Superior Court..................................................................................... 40

3. The failure to take timely action on Deputy Fogg’s
1985 EEO complaint........................................................................ 43

4. The failure to give Deputy Fogg annual performance
ratings beginning in April 1990............................................................  44

5. The Earp promotion in May 1990......................................................... 45

Conclusion.....................................................................................................................................  46

Certificate of Compliance with Fed. R. App. P. 32(a)(7)(B)......................................  47

v



Table of Authorities

Cases
Page

*Abatecola v. Veterans Administration. 29 M.S.P.R. 601, 1986 MSPB LEXIS 1443 
(1986), a ff  d. sub nom. Abatecola v. Merit Systems Protection Board,
802 F.2d 471 (Fed. Cir. 1986)..........................................................................................  29, 30, 36

Batson v, Powell. 912 F. Supp. 565 (D.D.C. 1996).........................................................  42

Baty v. Willamette Industries. Inc,. 172 F.3d 1232 (10th Cir. 19991............................ 13

Barbour v. Merrill. 48 F.3d 1270 (D.C. Cir. 19951..........................................................  26

Butler v. West. 164 F.3d 634 (D.C. Cir. 1999)................................................................  27

Chevron U.S.A.. Inc., v. National Defense Resources Council. 467 U.S. 837 (1984). 19

Conway v. Electro Switch Corp.. 825 F.2d 593 (1st Cir. 1987).....................................  38

Douglas v. Department of the Air Force. 5 M.S.P.R. 280 (1981).................................  33,36,37

EEOC v. Dinuba Medical Clinic. 222 F. 3d 580 (9th Cir. 2000)...................................  14,16

EEOC v. W&O. Inc.. 213 F.3d 600 (11th Cir. 2000)......................................................  14,16

Frickey v. Department of the Army. 61 M.S.P.R. 475 11994).......................................  31

Harris v. Department of the Air Force. 62 M.S.P.R. 524 (1994), review dismissed,
39 F.3d 1195 (Fed. Cir. 1994)..................................................... .......................... .........  31

Hayes v. Shalala. 902 F. Supp. 259 (D.D.C. 1995)........................................................  42

Hudson v. Reno. 130 F.3d 1193 (6th Cir. 1997), cert, denied,
525 U.S. 822 (1998).....................................................................................................  13,18,19

Johnson v. Railway Express Agency, Inc.. 421 U.S. 454 (1975).................................. 16

*Kolstad v. American Dental Ass’n, 108 F.3d 1431 vacated in part, 1997 U.S. App.
LEXIS 41262 (D.C. Cir. 1997), different results reached on reffg en banc, 139 
F.3d 958 (D.C. Cir. 1998), vacated, remanded, 119 S. Ct. 2118 (1999)....................  24

NOTE: Authorities chiefly relied upon are marked with an asterisk (*).

vi



Page

Landeraf v. USI Film Products. 511 U.S. 244 (1994).....................................................  15.18

Mungin v. Katten Muchin & Davis. 116 F.3d 1549 (D.C. Cir. 1997)........................... 42

Newhouse v. McCormick & Co.. Inc.. 110 F.3d 635 (8th Cir. 1997)............................  24

Nickerson v. U.S. Postal Service. 49 M.S.P.R. 451 (1991)............................................  36

Parker v. Secretary, 891 F.2d 316 (D.C. Cir. 1989)........................................................ 38

Passer v. American Chemical Society. 935 F.2d 322 (D.C. Cir. 1991)........................  42

Pope v. U.S. Postal Service, 114 F.3d 1144 (Fed. Cir. 1997)......................................... 33

Quint v. A.E. Staley Mfg. Co.. 172 F.3d 1 (1st Cir. 1999)................................. ............  24

Reeves v. Sanderson Plumbing Products. Inc.. ___U .S .___ , 120 S. Ct. 2097 (2000) 37

Reynolds v. Department of Justice. 63 M.S.P.R. 189 (1994). appeal dismissed, 36 
F.3d 1112 (Fed. Cir. 1994)............................................................................................... 36

Robinson v. Shell Oil Co.. 519 U.S. 337 (1997)...................... ...................................... 15

Smith v. Chicago School Reform Board of Trustees. 165 F.3d 1142 (7th Cir. 1999)... 13, 21

Taylor v. Federal Deposit Insurance Corn, 132 F.3d 753 (D.C. Cir. 1997)................ 41

Townsend v. Washington Metropolitan Area Transit Authority. 746 F. Supp. 178 
(D.D.C, 1990)...................................................................................................................  38

Transitional Hospitals Corp. v. Shalala. 222 F.3d 1019 (D.C. Cir. 2000)....................  19

United States v. Bridges. 175 F.3d 1062, 1065 (1999)...................................................  23

Webb v. District of Columbia. 146 F.3d 964 (D.C. Cir. 1998).....................................  23

Webster v. Department of the Army. 911 F.2d 679 (Fed. Cir. 1990), reh’g en 
banc denied. 926 F.2d 1149 (Fed. Cir.), cert, denied. 502 U.S. 861 (1991)............... 28

West v. Gibson. 527 U.S. 212 (1999)..............................................................................  16

Wideman v. Wal-Mart Stores. Inc.. 141 F.3d 1453 (11th Cir. 1998)............................  42

Workman v. Frito-Lay, Inc.. 165 F.3d 460 (6th Cir. 1999) 23



Statutes

5 U.S.C. § 7703(c)(3)........................................................................................................  27

5 U.S.C. § 7703(b)(2) (1996)........................................................................................ ••••• 1

28 U.S.C. § 1291(1993)................ .....................................................................................  1

42 U.S.C. § 2000e-5(f)(3) (1994)......................................................................................  1

42 U.S.C. § 20003-16(c) (1994)........................................................................................  1

*42 U.S.C. § 1981a.............................................................................................................  Passim

Pub. L. 102-166, Preamble and § 3 ...................................................................................  20

Other Authorities

5 C.F.R. Part 339.301(c)....................................................................................................  28,29

5 C.F.R. Part 339.301(e)....................................................................................................  29

Fed. R. Civ. P. 2 and 3 ......................................................................................................  54

Fed. R. Civ. P. 49(b)..........................................................................................................  23

Fed. R. Civ. P. 52(a)..........................................................................................................  37

Fed. R. Evid. 803(6)............................................................................................................ 26

49 Fed. Reg. 1321 (1984).................................................................................................. 29

54 Fed. Reg. 9761 (1989).................................................................................................. 29

137 Cong. Rec. S15471 (Oct. 30, 1991)..........................................................................  14

*137 Cong. Rec. S15483 (Oct. 30, 1991)........................................................................  18

137 Cong. Rec. S3025 (Mar. 12, 1991)...........................................................................  17

*137 Cong. Rec. H9526 (Nov. 7. 1991)..........................................................................  18

viii



S. 611, 102d Cong., 1st Sess. (1991)..................................................................................  17

S. 1745 102d Cong., 1st Sess. (1991).................................................................................  17, 18

EEOC Decision No. N-915.002, 1992 EEOC LEXIS 2 (July 14, 1992).........................  18

9A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 2d,
(2d ed. 1995)..........................................................................................................................23

Royer, Christina M., West v. Gibson: Federal Employees Win The Battle. But 
Ultimately Lose The War For Compensatory Damages Under Title VIL 33 Akron L.
Rev. 417 (2000)................................................................................................................. 19

Staudmeister, Douglas M., Comment, Grasping The Intangible: A Guide To 
Assessing Nonpecuniarv Damages In The EEOC Administrative Process. 46 Am.
U. L. Rev. 189, 215-18 (1996)............................... ............ .............................................. 19

Brief of the EEOC As Amicus Curiae In Support Of The Plaintiff-Appellee/Cross 
Appellant at 14-22, Reynolds v. CSX Transportation. Inc., 115 F.3d 860 (11th Cir.
1997) (No. 95-3364).........................................................................................................   19

IX



Glossary

1991 Act Civil Rights Act of 1991, Pub. L. 102-166 (1991), in particular 42 
U.S.C. § 1981a (1994), as effective November 21, 1991

Deputy Fogg Plaintiff/Appellant, Matthew F. Fogg

EEOC Equal Employment Opportunity Commission

MSPB Merit Systems Protection Board

OPM Office of Personnel Management

USMS Defendant/Appellee, the United States Marshals Service

MATF Metropolitan Area Task Force

x



Jurisdiction

Deputy Fogg is an African-American who alleged multiple acts of racial discrimination 

by his employer, the United States Marshals Service (“USMS”), a Federal agency. The district 

court had jurisdiction pursuant to 42 U.S.C. § 2000e-5(f)(3) (1994) (Title VII actions), as 

referenced by 5 U.S.C. § 7703(b)(2) (1996) (Title VII actions by federal employees) and 42 

U.S.C. § 2000e-16(c) (1994) (mixed case appeals from decisions of the Merit Systems 

Protection board (the “MSPB”)). This Court has jurisdiction over the district court’s final orders 

pursuant to 28 U.S.C. § 1291 (1993). The final order of the district court was issued on February 

25, 2000. The appeal was timely filed on April 10, 2000. The appeal is from final orders of the 

district court that dispose of all of Deputy Fogg’s claims.

Pertinent Statutes and Regulations

The pertinent portion of the Civil Rights Act of 1991 (the “ 1991 Act”) is the provision 

governing damages in cases of intentional discrimination in employment, 42 U.S.C. § 1981a 

(1994). That provision is reproduced in the statutory addendum to this brief.

Statement Of The Issues Presented For Review

1. Does the limitation on compensatory damages in 42 U.S.C. § 1981 a(b)(3) apply per 

cause of action or per case?

2. Did the district court ignore a binding jury verdict, abuse its discretion and otherwise 

act not in accordance with law when it denied Deputy Fogg front pay and refused to order that 

his dismissal be expunged from the USMS personnel records?



3. Was the decision of an MSPB Administrative Law Judge upholding the procedural 

grounds for Deputy Fogg’s dismissal arbitrary and capricious, not supported by substantial 

evidence and otherwise not in accordance with law?

4. Were the district court’s findings with respect to the conduct of the USMS prior to 

November 21, 1991 clearly erroneous and otherwise not in accordance with law?

Statement of the Case

Nature of Case

This is a Title VII action seeking redress for intentional employment discrimination on 

the basis of race by the USMS over the period 1985 through 1995.

Course of Proceedings

Deputy Fogg filed this Title VII action pro se on December 30, 1994, and sought a 

temporary restraining order enjoining a fitness-for-duty examination scheduled by the USMS. 

The case initially was assigned to Judge Ricardo M. Urbina, then reassigned to Judge Stanley S. 

Harris. Judge Harris denied the motion for a temporary restraining order on January 5, 1995. On 

January 10, 1995, Judge Harris granted Deputy Fogg leave to proceed in forma pauperis. On 

May 17, 1995, the undersigned counsel of record was appointed from the district court’s Civil 

Pro Bono Panel to represent Deputy Fogg.

On September 29, 1995, the USMS fired Deputy Fogg. He appealed that action to the 

MSPB. On May 31, 1996, an MSPB Administrative Law Judge denied the appeal. On March 7, 

1996, the Title VII case was reassigned to Judge Thomas P. Jackson. On March 8, 1996, Deputy 

Fogg filed an amended complaint and on August 14. 1996 filed a second amended complaint

9



restating the causes of action, adding a “mixed case” appeal from the decision ot the MSPB 

Administrative Law Judge and requesting a jury trial. App. A23-29.

Disposition Below

On March 20, 1998, Magistrate Judge Deborah A. Robinson denied the USMS motion to 

bifurcate the trial and directed that the jury be used in an advisory capacity with respect to 

Deputy Fogg’s pre-1991 Act claims, he ,̂ as to claims originating before November 21, 1991. On 

March 30, 1998, the district court granted the USMS motion for partial summary judgment with 

respect to the “non-discrimination” issues, he., as to the administrative law issues raised in the 

mixed case appeal from the MSPB Administrative Law Judge’s decision. That is the first of the 

three district court orders on appeal. App. A40.

The jury trial began on April 2, 1998 and concluded on April 28, 1998. Thirty-one 

witnesses testified, in person or through written or video tape depositions. The jury returned a 

general verdict accompanied by answers to special interrogatories. The jury’s advisory verdict 

as to pre-1991 Act causes of action held that the USMS had committed five specific acts of 

intentional employment discrimination against Deputy Fogg from 1985 through November 1991. 

(The jury found in favor of the USMS with respect to one specific act, a 1986 promotion.) The 

jury’s binding verdict as to post-1991 Act causes of action held that the USMS had committed 

nine separate acts of intentional employment discrimination against Deputy Fogg, up to and 

including his dismissal. The jury held that but for those acts of discrimination, Deputy Fogg 

would have been employed by the USMS at the time of trial with the grade and rank of a GS-15 

Chief Deputy United States Marshal. App. A821-824. The jury awarded Deputy Fogg four 

million dollars ($4,000,000.00) in compensatory damages. App. A824.



On July 1, 1999, the district court upheld the jury's post-1991 Act binding verdict. 

However, the district court remitted the jury's award of compensatory damages to three hundred 

thousand dollars ($300,000.00) and rejected the jury’s advisory verdict as to the pre-1991 Act 

causes of action. The remittitur and the rejection of the advisory verdict constitute the second 

order on appeal. App. A45-46.

On February 25, 2000, the district court substantially denied the equitable relief requested 

by Deputy Fogg. The district court held that Deputy Fogg was not entitled to have his 

termination overturned, that he was not entitled to reinstatement or front pay and that backpay 

would be limited to a nominal amount. That is the third order on appeal. App. A52.

Statement of Facts

Matthew Fogg served with great distinction as a Deputy U.S. Marshal in the District of 

Columbia from 1978 through his untimely and unlawful dismissal in 1995. He presently is 

unemployed and living on the workers compensation he receives for the psychological injury 

inflicted upon him by the USMS.

Most of the facts underlying his personal history no longer are controverted — or at least 

should not be. The crucial events that occurred on and after November 21, 1991, the effective 

date of the 1991 Act, were decided by the jury in a general verdict accompanied by answers to 

special interrogatories. The district court properly denied the USMS motion for judgment as a 

matter of law, and the USMS has not appealed from that denial. As for the pre-1991 Act facts, 

the jury returned an advisory verdict in favor of Deputy Fogg on all but one of the allegations of 

discrimination. The district court, however, refused to follow the advisory verdict.

4



Background

The USMS is a small but crucial agency, given its mission to protect the federal courts 

and to ensure the effective operation of the judicial system. Although it has a substantial number 

of Presidential appointees, i^e., a U.S. Marshal for each judicial district and a Director, the core 

of the USMS is its professional law enforcement staff. That staff— the Deputy U.S. Marshals 

— is supervised by a small group of Senior Executive Service personnel at USMS headquarters 

in Arlington, Virginia. From the inception of the USMS in 1789 through the trial in 1998, an 

African-American never had been part of that headquarters group. App. A292.

Deputy Fogg joined the USMS in 1978. He was a college graduate with a Bachelor of 

Science degree in criminal justice. App. A110. He took advantage of every career advancement 

opportunity offered by the USMS. Although he was assigned to the Metropolitan Washington 

Area for his entire career, he also was a member of the USMS Special Operations Group, an elite 

unit that could be, and frequently was, deployed throughout the United States on short notice.

He served with distinction and, more than once, put his life on the line for the judicial system. 

App. A110-125, A172-181, A208.

Pre-1991 Act Actions

The pre-1991 Act actions are discussed in substantial detail in Section IV of the 

Argument, below. Summarizing, in 1985 Deputy Fogg was serving in the fugitive detail in U.S. 

District Court for the District of Columbia when a white supervisor, Chief Deputy Hein, severely 

and wrongfully reprimanded him in front of other supervisors for the alleged misuse of a 

government vehicle and for other imagined offenses and transferred him to Superior Court. 

Deputy Fogg filed an EEO complaint against Chief Hein, the first of a number of complaints 

directed at discriminatory practices within the agency. This was the beginning of what was. in a



perverse sense, a dual career track for Deputy Fogg. On the one hand, he was put in positions, 

typically dangerous positions, where his considerable law enforcement skills could be utilized. 

On the other hand, he was denied the promotion opportunities and other benefits appropriate to 

those skills, and the USMS refused to process his EEO complaints.

The situation worsened in 1989 when Chief Hein was given an interim appointment to 

the new position of United States Marshal for the District of Columbia Superior Court. Deputy 

Fogg led a group of African-American deputies in opposing Senate confirmation of Chief Hein 

to the permanent position. Chief Hein withdrew his name, but the USMS still would not act on 

Deputy Fogg’s EEO initial complaint. This occurred despite the personal intervention of Herbert 

Rutherford, then the United States Marshal for the District of Columbia District Court, with the 

new Director of the USMS, Judge Moore. Chief Hein testified that Judge Moore declined to get 

involved because it was “strictly political.” App. A456-457. Marshal Rutherford testified at trial 

that if Deputy Fogg had not been African-American, his discrimination claims would have been 

remedied sooner. App. A276.

The situation quickly went from bad to worse. While Deputy Fogg continued to perform 

at a high level, he received no annual performance ratings for the two-year period starting in 

April 1990. In May 1990, he was second on the merit certification list for two promotions to a 

GS-13 criminal investigator position. The selection was personally made by Judge Moore, who 

selected the white applicant rated slightly ahead of Deputy Fogg but passed over Deputy Fogg 

for the second position to take a white applicant who was rated fourteenth on the list. Deputy 

Fogg filed EEO complaints for these and related incidents. App. A143, A195, A318-328.

6



Post-1991 Act Actions

In 1989, Deputy Fogg had been assigned to the high profile Metropolitan Area '1 ask 

Force (“MATF”), a multi-agency law enforcement unit dedicated to tracking and apprehending 

dangerous fugitives. Deputy Fogg was a GS-12. His immediate MATF supervisor was a GS-14. 

His supervisor was transferred to headquarters and Deputy Fogg assumed all of his supervisory 

responsibilities. It took eighteen months, and the repeated intervention of Marshal Rutherford 

and Chief Deputy Griffin on his behalf, to get him promoted just to the GS-13 level, and even 

that only on a temporary basis. App. A166-171.

The MATF fugitive group led by Deputy Fogg was an unqualified success: 219 major 

fugitives were arrested through January 1992, including several USMS “Top 15” fugitives 

personally arrested by Deputy Fogg. One arrest, that of Michael Antonio Lucas, was so 

important to the USMS that it arranged to have the arrest recreated by Deputy Fogg and his team 

on the nationally-televised program “America’s Most Wanted.’" App. A181. Nonetheless, 

Deputy Fogg received no further promotions and, in January 1992, he was largely stripped ot his 

supervisory responsibilities on the MATF, ironically by his former MATF supervisor now at 

headquarters, because of concerns about the “appearance” that he was “stat stealing.” App. 

A670-674.

The only good news at this point was that the USMS finally had started processing 

Deputy Fogg’s 1985 EEO complaint against Chief Hein. But Deputy Fogg’s career 

advancement was, for all practical purposes, over. He was transferred to a desk job at 

headquarters in late 1992. In early 1993, his supervisor began to question the time he was 

spending with respect to the processing of his EEO complaints. This culminated in Deputy Fogg 

experiencing severe physiological stress symptoms at work and being unable to continue at

7



work. He went on leave and received professional counseling and treatment, but the source of 

the stress -  the job-related discrimination -  continued, as confirmed by a fitness-for-duty 

examination conducted by a USMS-designated psychiatrist. App. A857. In November 1994, the 

USMS unlawfully ordered him back to work without a new fitness-for-duty examination. He 

dutifully reported to work and immediately experienced the same stress symptoms, ending the 

day in a hospital emergency room. App. A864-866. Although he was no longer on active duty, 

the USMS also returned him to the GS-12 level.

The culmination came in late 1994 when the USMS ordered him to report for a fitness- 

for-duty examination. Deputy Fogg immediately filed the action below, pro se, and sought 

preliminary injunctive relief. This led to a series of postponements and confusion about when he 

was to report. The USMS offered him a chance to take the examination in the summer of 1995. 

He did not then, or ever, refuse to take the examination. Instead, the undersigned counsel of 

record, then appointed to represent Deputy Fogg, directed a set of written questions to the USMS 

about (1) the purpose of the examination, since Deputy Fogg was on workers compensation and 

was not seeking reinstatement, and (2) the scope of the examination, given the numerous prior 

examinations that always reached the conclusion that he was not fit for duty. App. A873-874.

The USMS response was a notice of dismissal on grounds of insubordination, an action made 

final in September 1995. App. A875-877.

There is no arguing about the accuracy or implications of these facts. In response to 

interrogatories accompanying its general verdict, the jury found, with respect to post-1991 Act 

allegations, that the USMS engaged in intentional acts of racial discrimination by: (i) creating a 

racially hostile work environment on and after November 21. 1991; (ii) failing to promote 

Deputy Fogg to a GS-13 position while he was on the MATF; (iii) failing to promote him to a

8



GS-14 position while he was on the MATF: (iv) limiting his supervisory responsibilities while he 

was on the MATF; (v) inquiring about his EEO activities while he was on the job in 1993; (vi) 

ordering him back to work in September 1994; (vii) returning him to the GS-12 level in 

December 1994; (viii) ordering him to report for a fitness-for-duty examination in 1995; and (ix) 

dismissing him from the USMS in September 1995. The jury further found that but for the acts 

of discrimination, Deputy Fogg would have risen to the level of a GS-15 Chief Deputy by the 

time of the trial (April 1998). App. A821-824.

The USMS filed a post-trial motion for judgment as a matter of law. The district court 

denied that motion in a Memorandum and Order issued on July 1, 1999. The court stated that the 

witnesses:

described a U.S. Marshals Service, however, that has labored in substantial racial 
turmoil for at least a decade, and in which racial identities are keenly felt. The 
perception is pervasive on the part of African-Americans members of the 
Marshals Service that they are less highly regarded and more is expected of them 
than of their white peers. The Court concludes that the latter fact alone 
constituted sufficient evidence to support the jury’s finding that Fogg had been 
exposed to a hostile racial environment and to justify its award of compensatory 
damages, irrespective of the validity of his accounts of bigotry directed at him 
personally.

* * * *

So it is as well with respect to plaintiffs multiple claims of particularized 
incidents of racial discrimination or retaliation post-November 1991. For each of 
them the USMS offered a superficially plausible innocent explanation — not all of 
them particularly laudable or reflecting favorably on the USMS, to be sure -  but 
plaintiff presented no direct evidence that any of them were pretextual in any 
respect, let alone a subterfuge for racial animus. Nevertheless the jury obviously 
inferred from the evidence of the endemic atmosphere of racial disharmony and 
mistrust within the USMS that all explanations were suspect, and that occult 
racism was more likely the reason than any other for Fogg’s misadventures with 
the Marshals Service hierarchy.

App. A49-50.

9



Aftermath

.Much good has come from the verdict below. The Director of the USMS is an African- 

American, for the first time in its history. App. A841. Opportunities for other African- 

Americans are opening up. Other federal law enforcement agencies are being forced to look at 

their treatment of African-Americans. But for Deputy Fogg, nothing has changed. He remains 

unemployed and on workers compensation. The district court reduced the jury’s four million 

dollar compensatory damages verdict to $300,000 on the ground that the Section 1981a cap on 

damages applies on a per case basis. The district court also denied him any forward-looking 

equitable relief (and limited his back pay) predicated on the court’s personal belief that Deputy 

Fogg was lawfully dismissed — a belief that directly contradicts the jury’s binding verdict that 

the dismissal was the product of racial discrimination.

Making the victim of racial discrimination whole is the ultimate purpose of Title VII. It 

also is the purpose of this appeal.

Summary of Argument

1. The district court erred in remitting the jury’s damage award for post-1991 Act 

instances of racial discrimination from $4 million to $300,000. The remittitur was based on the 

court’s application of the statutory damages cap under 42 U.S.C. § 1981a on a per case basis 

rather than a per claim basis. That interpretation of the statute is erroneous as a matter of law.

The statute is ambiguous as to whether the $300,000 cap applies per case or per claim, 

but the legislative history and structure of the 1991 Act make clear that the $300,000 cap on 

damages is intended to apply to each cause of action upon which a plaintiff prevails. In 

describing the cap on damages and other limitations, the sponsors of the 1991 Act stated that

10



these limitations “are placed on the damages available to each individual complaining party for  

each cause o f action brought under section 1981a." Courts that have applied the damages cap on 

a per-case basis have given short shrift to Congress’s plainly stated intent. Moreover, the EEOC, 

the federal agency charged with enforcing the 1991 Act, has interpreted the Section 1981a 

damages cap as applying separately to each cause of action upon which the plaintiff prevails.

That interpretation is entitled to deference under the Chevron doctrine. Finally, a per-claim 

interpretation of the damages cap is consistent with the overall purpose of the 1991 Act.

2. The district court erred as a matter of law in largely rejecting Deputy Fogg’s request 

for equitable relief regarding his post-1991 Act claims. The court asserted that Deputy Fogg was 

lawfully dismissed from the USMS in 1995, despite the jury’s binding verdict (a verdict that the 

court had refused to overturn on post-trial motions) holding that the dismissal violated Title VII. 

Although the trial court retains discretion, in light of the jury’s verdict, to shape prospective 

equitable relief, in considering such relief the court is bound by the jury’s factual findings. Flere, 

the court expressly and impermissibly nullified the jury’s binding factual findings by substituting 

its own. In doing so, the court erred as a matter of law. The court then relied on its personal 

view of the facts, instead of the jury’s binding verdict, in denying Deputy Fogg the prospective 

equitable relief he sought. The court’s rejection of equitable relief, based, as it was, not on the 

jury’s binding factual findings but on the court’s de facto rejection of those findings, constitutes 

an abuse of discretion.

3. In any event, the district court also erred in upholding the decision of an MSPB 

Administrative Law Judge that the dismissal of Deputy Fogg for insubordination was 

procedurally valid.

11



A charge of insubordination consists of two elements: the order must be one that the

agency was entitled to have obeyed; and the failure to obey the order must be willful and 

intentional. Neither element is present here. First, the order to report was ultra vires, in that it 

failed to comply with applicable regulatory requirements by failing to properly identify a 

position or positions that the agency reasonably believed Deputy Fogg could fill under the 

circumstances. Under MSPB precedents, a federal employee is not required to submit to an ultra 

vires psychiatric examination. Second, there was no willful refusal to obey. The record shows 

that Deputy Fogg was dismissed for failing to report for a psychiatric examination that had not 

been definitively scheduled and that he had not refused to attend.

The dismissal also was flawed because the USMS failed to consider sufficiently the 

mitigating factors established by MSPB precedent.

4. The evidence at trial clearly supported the jury’s advisory verdict regarding the 

pervasive environment of racial hostility within the USMS before the 1991 Act, as well as the 

discriminatory nature of various specific pre-1991 Act incidents, including Deputy Fogg’s 

reprimand by Chief Hein, the failure to take timely action on Deputy Fogg’s 1985 EEO 

complaint that arose from the Hein incident, the USMS’s failure to give Deputy Fogg annual 

performance ratings for two years, and the passing over of Deputy Fogg for a promotion in favor 

of a White deputy twelve positions below him on the merit certification list. The jury, in its 

advisory verdict, found each of those acts to be the product of racial discrimination. The trial 

court’s refusal to accept the jury's advisory verdict was clearly erroneous and should be

reversed.



Argument

I. THE SECTION 1981a CAP ON COMPENSATORY DAMAGES SHOULD BE 
APPLIED PER CAUSE OF ACTION RATHER THAN PER CASE.

The jury found that Deputy Fogg suffered nine separate acts of intentional discrimination

at the hands of the USMS after November 21, 1991, the effective date of the 1991 Act. App.

A821-826. Each such act of discrimination, ranging from on-the-job harassment to denials of

promotions to dismissal, constituted a Title VII violation. The jury, which could not be informed

that there was a limitation on damages,1 awarded Deputy Fogg four million dollars in

compensatory damages for those violations.

The district court remitted that award to $300,000 on the ground that the cap on damages

in 42 U.S.C. § 1981a(b)(3) applies on a per case rather than a per cause of action basis. While

the district court followed precedent in three other circuits, led by the Sixth Circuit’s decision in

Hudson v. Reno. 130F.3d 1193, 1199-1201 (6th Cir. 1997). cert, denied. 525 U.S. 822 (1998),2

this legal issue previously has not been before this Court. The district court erred as a matter of

law in its interpretation of Section 1981 a(b)(3).

A. The Language of Section 1981a Does Not Address Whether The Cap On
Damages Should be Applied On A Per Cause of Action Or A Per Case Basis.

The language in Section 1981a that the Hudson court found pertinent is set forth below:

(a)(1) In an action brought by a complaining party under section 706 or 717 of 
the Civil Rights Act of 1964 . . . the complaining party may recover compensatory 
and punitive damages as allowed in subsection (b) of this section, in addition to 
any relief authorized by section 706(g) of the Civil Rights Act of 1964, from the 
respondent.

*  *  *  *

1 42 U.S.C. § 1981a(c)(2).
2 See also. Baty v. Willamette Industries. Inc.. 172 F.3d 1232, 1245-46 (10th Cir. 1999); Smith 

v. Chicago School Reform Board of Trustees. 165 F.3d 1142, 1149-51 (7th Cir. 1999).



(b)(3) The sum of the amount of compensatory damages awarded under this 
section for future pecuniary losses, emotional pain, suffering, inconvenience, 
mental anguish, loss of enjoyment of life, and other non-pecuniary losses ... shall 
not exceed, for each complaining party ... $300,000.

The Hudson court read this language as “conclusive” for the proposition that the cap on 

damages is to be applied on a per case basis. Focusing on the term “action” in paragraph (a)(1), 

the court found that this term means, by analogy to Fed. R. Civ. P. 2 and 3, “all claims for relief 

alleged in a single lawsuit.” The court then applied that term as a qualifier to the phrase “for 

each complaining party” in paragraph (b) (3) to conclude that the cap is to be applied on an 

aggregate basis. That meaning, however, is neither “plain” nor correct.

Neither the term “action” nor the phrase “for each complaining party” relates to the cap 

on damages. “Action” merely describes the types of proceedings in which compensatory 

damages are available — namely, those brought under section 706 or 717 of the Civil Rights Act 

of 1964. “For each complaining party” makes clear that when there are multiple victims of 

discrimination, each can recover compensatory damages — he., as the legislative history 

indicates, the sole purpose of this language is to “ensure that the remedy provided in this Bill is 

available to each individual who has been subjected to the abuse.” 137 Cong. Rec. S I5471 

(daily ed. Oct. 30, 1991) (remarks by Senators Kennedy and Hatch).

Indeed, if paragraph (b)(3) specifically said that the cap was to be applied to each cause 

of action, it would not be the least bit inconsistent with use of the terms “action” and “for each 

complaining party.” Similarly, if paragraph (b)(3) specifically said that the cap was to be applied

See also. EEOC v. Dinuba Medical Clinic. 222 F.3d 580, 589 (9lh Cir. 2000); EEOC v. W &
O. Inc.. 213 F.3d 600. 613-14 (11th Cir. 2000).

14



per case, neither "action” nor "for each complaining party" would be redundant. But paragraph 

(b)(3) says neither, and, therefore, is ambiguous.

The Supreme Court has cautioned against readings of the Civil Rights Act that attempt to 

find “plain” meaning inconsistent with the purposes of the law. In Robinson v. Shell Oil Co.. 

519 U.S. 337 (1997), the Court held that the term “his employees” in Title VII included a former 

employee who alleged that his former employer retaliated against him by giving negative job 

references. Justice Thomas, writing for a unanimous Court, held that the term “his employee” 

was ambiguous, as “determined by reference to the language itself, the specific context in which 

that language is used, and the broader context of the statute as a whole.” Id. at 341. The source 

of the ambiguity was the lack of any temporal qualifier, which rendered the term at least 

arguably consistent with either past or present employment. Looking at the broader context of 

Title VII, Justice Thomas found that a contrary meaning would “undermine the effectiveness” of 

the law. Id, at 346. The same can be said here.

In Landgraf v. USI Film Products, 511 U.S. 244 (1994), the Court held that the 1991 Act 

could not be applied retroactively. Petitioners argued that certain exclusionary language in the 

Act created a negative inference that all provisions not specifically declared prospective-only 

were subject to retroactive enforcement. The Court noted that “(gjiven the high stakes of the 

retroactivity question, the broad coverage of the statute, and the prominent and specific 

retroactivity provisions in the 1990 bill, it would be surprising for Congress to have chosen to 

resolve that question through negative inferences drawn from two provisions of quite limited 

effect.” Id, at 259.

In that same spirit, the Ninth and Eleventh Circuits recently held that although Section 

1981 a(a)( 1) limits the recovery of compensatory and punitive damages to a "complaining party.”

5



the EEOC is entitled to recover such damages on behalf of multiple individual employees in a 

Title VII action even though those employees have not filed separate suits or intervened. See 

Dinuba Medical Clinic. 222 F.3d at 588-9; W & O, Inc., 213 F.3d at 612-14. The courts reached 

this result, again, by finding the statutory language inconclusive and relying on the overall 

purposes and legislative history of Title VII.

Given the ambiguous statutory language with regard to the cap on damages, the meaning 

must be derived from the legislative history of the provision and the overall structure and 

purpose of the statute. C f West v. Gibson, 527 U.S. 212, 217 (1999) (‘The language, purposes, 

and history of the 1972 Title VII extension and the 1991 CDA [1991 Act] convince us that 

Congress has authorized the EEOC to award compensatory damages in Federal Government 

employment discrimination cases.”). They all support application of the cap on damages to each 

cause of action.

B. The Legislative History Is Clear: The Cap On Damages Is To be Applied 
Separately To Each Cause of Action.

The 1991 Act represented a compromise on a number of contentious issues, with 

compensatory (and punitive) damages being just one. Prior to its enactment, non-governmental 

employees were entitled to recover unlimited compensatory and punitive damages only for racial 

or ethnic discrimination pursuant to 42 U.S.C. § 1981.4 Government employees, or non­

government employees suffering gender, religious or disability discrimination, could not recover 

such damages.

4 Johnson v. Railway Express Agency, Inc.. 421 U.S. 454. 459-60 (1975). There was no cap 
on the compensatory or punitive damages available under Section 1981.

16



The President vetoed the initial effort to amend the Civil Rights Act in 1990. In March

1991, the Administration submitted a new legislative proposal that would have established.

among other things, a cause of action for “harassment.” In addition to ordering injunctive relief

in a harassment case, a district court could:

exercise its equitable discretion to require the employer to pay the complaining 
party an amount up to but not exceeding a total of $150,000, if the court finds that 
an additional equitable remedy beyond those available under subsection (g) of this 
section is justified by the equities, is consistent with the purposes of this Title, and 
is in the public interest.

S. 611, 102d Cong., 1st Sess., § (1) (1991). In the explanatory statement for S. 611, the 

Administration stated that the phrase “up to but not exceeding a total of $150,000 . . .  is intended 

to make clear that where there are several related incidents that could arguably be subdivided 

into distinct unlawful employment practices, the award that can be obtained under this new 

provision for all of them combined is limited to $150,000.” 137 Cong. Rec. S3025 (daily ed. 

March 12, 1991).

The most significant fact about this bill is that it reflected a recognition of the per cause 

of action/per case ambiguity and an effort to resolve that ambiguity both on the face of the 

statute and in its legislative history. However, it was overtaken by the Danforth-Kennedy 

Substitute Civil Rights Act of 1991, S. 1745, 102d Cong., 1st Sess. (1991), introduced in 

September 1991. The approach in this bill was to allow any employee to seek compensatory and 

(for non-government employees) punitive damages for any conduct in violation of Title VII and 

the Americans with Disabilities Act. These damages would be subject to a cap identical in 

language to that ultimately enacted in the 1991 Act.

The sponsors of S. 1745 ensured that the underlying legislative intent was clear. Prior to 

passage of the bill, the Republican cosponsors produced an Interpretative Memorandum

17



“intended to reflect the intent of all of the original cosponsors" and agreed to by Senator

Kennedy as to everything but the retroactivity issue. 137 Cong. Rec. S I5483 (daily ed. October

30, 1991). In describing the cap on damages and other limitations, the sponsors stated that these

limitations “are placed on the damages available to each individual complaining party for each

cause o f action brought under section 1981 a.” Id. (emphasis added). After passage of S. 1745,

Representative Edwards extended his remarks to include another Interpretative Memorandum,

representing the views of all of the House cosponsors and echoing the consensus in the Senate:

The sponsors acknowledge the limitations on damages awards in 
the legislation which apply to the damages available to each 
individual complaining party for each cause o f action brought 
under section 1981a.

137 Cong. Rec. H9526 (daily ed. Nov. 7. 1991) (emphasis added).

The Hudson court unfairly discounted these Memoranda. The Supreme Court’s criticism 

of the Senate Interpretative Memorandum in Landgrafl 511 U.S. at 263, n.15, was predicated 

solely on the fact, not pertinent here, that it did not reflect an agreement on the retroactivity 

issue. In fact, these Memoranda were relied upon by the EEOC in setting forth enforcement 

guidance under the 1991 Act.5

“For each cause of action” is compelling and plainly understood language. The 

inescapable point of this history is that the Senate and House sponsors of the 1991 Act believed 

that they were creating a cap on damages that would apply to each cause of action, not to the 

totality of all causes of action that were or could be brought. As discussed below, this is the only 

interpretation that is consistent with the broader purpose and structure of the law.

See EEOC Decision No. N-915.002. 1992 EEOC LEXIS 2 (July 14. 1992).

18



C. The EEOC Has Interpreted The Damages Cap As Applying To Each Cause 
Of Action. Deference Is Due That Interpretation.

As noted by the Hudson court, but then summarily discounted, ‘'the EEOC adopted a ‘per 

claim’ cap position in an amicus brief it filed in a case on appeal to the Eleventh Circuit” in 

1997. Hudson, 130 F.3d at 1201.6 The issue was not addressed by the Eleventh Circuit in its 

opinion in that appeal. Nonetheless, the EEOC’s position is entitled to deference.7

Under the Chevron doctrine, an agency’s interpretation of a statute that it is charged with 

enforcing is subject to a two-part test. First, is the statute silent or ambiguous on the issue? 

Second, is the agency’s interpretation based on a permissible construction of the statute? If these 

tests are met, the agency’s interpretation is entitled to deference. See Transitional Hospitals 

Corn, v. Shalala. 222 F.3d 1019, 1023-24 (D.C. Cir. 2000), citing Chevron U.S.A.. Inc, v. 

National Defense Resources Council, 467 U.S. 837, 842-43 (1984).

Here, the statute is silent and, therefore, ambiguous. The EEOC’s interpretation is 

consistent with the underlying Congressional intent and, as discussed below, with the overall 

purpose and structure of the statute. If the EEOC never had taken a position on this issue, the 

result still would be the same, ijr , it would not change what the statute said or did not say, and it

6 The EEOC asserted that under Section 1981 a, a plaintiff pursuing multiple claims of 
discrimination in a single case is entitled to a separate cap on damages for each claim on 
which he or she prevails. See Brief Of The EEOC As Amicus Curiae In Support Of The 
Plaintiff-Appellee/Cross-Appellant at 14-22, Reynolds v, CSX Transportation, Inc.. 115 F.3d 
860 (11th Cir. 1997) (No. 95-3364).

7 A sa  practical matter, the issue rarely, if ever, arises in cases litigated before the EEOC. 
Given the nature of the cases that are litigated before that agency rather than in the district 
courts -  smaller, individual causes of action where complainant typically appear pro se — 
the compensatory damages sought by the complainants are often, if not always, well under 
the cap. See, e.g.. Christina M. Royer, West v. Gibson: Federal Employees Win The Battle. 
But Ultimately Lose The War For Compensatory Damages Under Title VII, 33 Akron L.
Rev. 417, 436-38 (2000); Douglas M. Staudmeister. Comment, Grasping The Intangible: A

(continued...)

19



would not alter the legislative history. But having spoken on the issue, the EEOC's 

interpretation is entitled to deference.

D. A Cap On Damages Applied To Each Cause Of Action Is Consistent With 
The Purpose And Structure Of The Civil Rights Acts of 1964 and 1991.

The 1991 Act is intended, among other things, “to provide for damages in cases of 

intentional employment discrimination” and “to provide appropriate remedies for intentional 

discrimination and unlawful harassment in the workplace.” Pub. L. 102-166, Preamble and §3; 

42 U.S.C. §1981 note. The recovery of compensatory damages (and, for non-governmental 

employees, punitive damages) is essential to that remedial purpose. While the cap on damages 

obviously represents a compromise, it should be interpreted and applied in a way that does not 

frustrate that purpose or otherwise interfere with the orderly administration of the civil rights 

acts.

Any person who suffers discrimination at the hands of his or her employer has a cause of 

action under Section 1981a. Each cause of action can be prosecuted administratively before the 

EEOC (or, in a “mixed” case, before the Merit Systems Protection Board) or, once the 

preliminary administrative procedures are exhausted, in a district court with a right to a jury trial. 

The fact that the employer engages in multiple acts of discrimination against an employee does 

not mean that there is only one cause of action. Particularly in the context of Title VII, where 

causes of action can arise over an extended period of time, application of the doctrine of claim 

preclusion must strike a balance between judicial efficiency and the desire to prevent vexatious

(...continued)
Guide To Assessing Nonpecuniarv Damages In The EEOC Administrative Process. 46 Am. 
U. L. Rev. 189. 215-18 (1996).

2 0



litigation, on the one hand, and the legitimate rights of persons injured by discriminatory- 

conduct, on the other hand.

Against this background, an interpretation of Section 1981a that encourages victims of

discrimination to pursue multiple causes of action in separate administrative or judicial

proceedings makes absolutely no sense. The Seventh Circuit addressed this inconsistency in

Smith v. Chicago School Reform Board of Trustees, 165 F.3d 1142, 1150 (7th Cir. 1999)

although unfortunately it reached a result that memorialized the inconsistency:

Multiple discriminatory transactions or episodes may be pursued in multiple suits 
and yield cumulative recoveries; but multiple claims in a single suit (even if based 
on multiple transactions) may not. That’s somewhat awkward, but it makes sense 
of the statutory language and discourages efforts to evade the ceiling (for these 
efforts may lead to complete failure of all suits after the first.)

With all due respect to the Seventh Circuit, this interpretation is more than “somewhat

awkward.” It creates a situation where Section 1981a works against itself and against the

interests of judicial efficiency.

The contrary interpretation — as urged by Deputy Fogg, endorsed by the EEOC 

and dictated by Congress’s clear statement of intent — would reduce the burden on the 

courts, on the administrative agencies and on employees while preserving the right of 

employers to argue against any excessive splitting of causes of action. The injuries 

caused to Deputy Fogg after November 21, 1991, illustrate both the application of, and 

the necessity for, this approach.

The jury found that over the space of four years, the USMS: twice failed to 

promote Deputy Fogg to a pay grade consistent with his supervisory responsibilities; 

limited his supervisory responsibilities; interfered with his protected EEO activities (with 

respect to unresolved EEO claims that went back to 1985); ordered him back to work

21



without a fitness-for-duty examination after he was forced to leave work because of 

discrimination-induced psychological and physical problems; reduced his pay grade to a 

lower level; ordered him to report for a fitness-for-duty examination when he was on 

workers compensation; and then dismissed him on grounds of insubordination because 

his counsel asked the USMS some questions about the examination. The jury specifically 

found that each of these actions constituted a separate act of discrimination. The jury 

also found that Deputy Fogg was subjected to and affected by a working environment 

that was racially hostile to African-American Deputy U.S. Marshals during this period. 

App. A821.

If the interpretation urged by Deputy Fogg is applied, it will be up to the district 

court on remand to decide whether this constitutes ‘'hair-splitting.’ The fact is that 

Deputy Fogg, as a legal matter, could have pursued these causes of action in individual 

cases. It also is a fact, however, that pursuing multiple individual cases, as a practical 

matter, would have been extraordinarily difficult, if not impossible, given the history of 

these issues and Deputy Fogg’s need to rely upon court-appointed counsel. They also 

would have imposed an undue burden on the judicial system.

For these reasons, the lower court’s per-case application of the cap on damages is 

absolutely inconsistent with the clear legislative history of the 1991 Act and the purpose 

of the civil rights acts and is not in the best interest of any person or institution interested 

in the orderly pursuit of justice.



II. THE DISTRICT COURT’S REFUSAL TO GRANT PROSPECTIVE 
EQUITABLE RELIEF WAS INCONSISTENT WITH THE BINDING 
JURY VERDICT AND WRONG AS A MATTER OF LAW.

The jury returned a general verdict accompanied by answers to special

interrogatories for both the pre-1991 Act (advisory) and post-1991 Act (binding)

discriminatory conduct of the USMS. In substantially denying the equitable relief sought

by Deputy Fogg for the post-1991 discriminatory conduct, the district court specilically

and improperly rejected the jury’s binding findings of fact reflected in the jury’s answers

to the special interrogatories. While a decision with respect to Title VII equitable relief

generally is subject to an abuse of discretion standard of review, Webb v. District ol

Columbia, 146 F.3d 964, 976 (D.C. Cir. 1998), errors of law below are subject to de novo

review by this Court. See, e.g.. United States v. Bridges, 175 F.3d 3062, 1065 (1999).

The use of a general verdict accompanied by answers to special interrogatories

pursuant to Fed. R. Civ. P. 49(b) “requires the jury to give close attention to the more

important issues in the case, and its answers serve as a check on the propriety of the

general verdict.” Workman v. Frito-Lav, Inc.. 165 F.3d 460, 465 n.4 (6th Cir. 1999)

(citing 9A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure: Civil

2d, § 2505 (2d ed. 1995)). When, as here, a jury trial is as of right, and the jury issues a

general verdict accompanied by answers to special interrogatories, “it is the verdict of the

jury . . . that is the definitive finding of fact.” Charles A. Wright & Arthur R. Miller,

Federal Practice and Procedure: Civil 2d, § 2513, at 235 (2d ed. 1995). That verdict may

be set aside only through a motion for judgment as a matter of law or an motion for new

trial. See id  Here, the trial court denied both such motions by the appellee. App. A51.



Having done so, therefore, the court is not tree later to disregard the jury s binding post- 

1991 Act findings.

“[I]n cases involving allegations of intentional discrimination, the district court m ust. . . 

follow the jury’s factual findings with respect to a plaintiff s legal claims when later ruling on 

claims for equitable relief.” Kolstad v. American Dental Ass’n, 108 F.3d 1431, 1440, vacatedjn 

part, 1997 U.S. App. LEXIS 41262 (D.C. Cir. 1997), different results reached on reh’g enbanc, 

139 F.3d 958 (D.C. Cir. 19981. vacated, remanded. 119 S. Ct. 2118 (1999) (citations 

omitted)(emphasis added). Cf. Quint v. A.E. Staley Mfg. Co., 172 F.3d 1, 19 (1st Cir. 1999) ( In 

determining appropriate equitable relief [under Americans with Disabilities Act claim], the 

district court was strictly constrained by these jury' findings.”) (emphasis added); Newhouse v. 

McCormick & Co.. Inc.. 110 F.3d 635, 641 (8th Cir. 1997) (“In making a front pay award [under 

the Age Discrimination in Employment Act], the district court is not free to reject or contradict 

findings by the jury  on issues that were properly submitted to the jury, but the district court 

‘retains its discretion to consider all the circumstances in th[e] case when it determines what 

equitable relief may be appropriate.’”) (citation omitted) (emphasis added).

The jury specifically found, in response to special interrogatories, that the USMS 

discriminated against Deputy Fogg by, among other things, ordering him to report for a 

fitness-for-duty-examination in 1995 and then dismissing him for insubordination for 

allegedly refusing to take that examination. App. A823. The jury further found that were 

it not for these and other actions, Deputy Fogg would have risen to the level of a GS-15 

Chief Deputy by the time of the trial. The district court denied a USMS post-trial motion 

for judgment as a matter of law with respect to that verdict. The USMS is not appealing 

that denial.

24



Deputy Fogg sought two items of prospective relief based on that verdict: 

expungement of the dismissal from his personnel records and front pay and/or 

reinstatement. The district court refused to consider either. Further, the district court 

limited the level of Deputy Fogg’s back pay to no higher than a GS-14, and even that 

phased in over time. App. A52-53.

Ruling from the bench at the hearing on Deputy Fogg’s motion for equitable relief, the 

trial court substituted the jury’s binding, post-1991 Act factual findings with its own. The 

district court asserted that Deputy Fogg “was validly dismissed from the USMS for 

insubordination,” even though acknowledging that “the jury found otherwise.” App. A838. In 

the district court’s very personal view, Deputy Fogg “really has gotten a pass from the day he 

was first told to go for a fitness examination until the date he was finally dismissed tor having 

failed to do so on several occasions.” App. A838. Acknowledging the racially-motivated 

problems that Deputy Fogg faced, the trial court stated that “lots of other Deputy Marshals, 

similarly situated, managed to survive, nevertheless,” and that “the head of the service today is a 

Black United States Marshal.” The court made clear that it did not feel bound by the jury’s 

finding, stating that “if I am bound by it, I want the Court of Appeals to tell me." App. A838,

The court further stated that “if the Court of Appeals tells me that I have to disregard the decision 

of the Merit [System] Protection Board, or that it is trumped by the jury's verdict, then we will 

revisit the issue” of equitable relief. App. A840.

The district court also expressed doubts about Deputy Fogg’s disability. App. A841.

This disability had been clearly established at trial through the statements of professionals who 

had examined Deputy Fogg, including the results ol an earlier fitness-for-duty examination,

App. A857-862. The USMS did not contest the existence of that disability, either at trial or in its



post-trial motion. In support of his motion for equitable relief. Deputy Fogg also relied upon a 

January 1996 Psychiatric Evaluation Report prepared at the behest of the Office of Workers 

Compensation. App. A878-880. This report echoed all of the previous findings. Although the 

district court had admitted similar reports as medical diagnoses under Fed. R. Evid. 803(6), it 

had excluded this report and refused to consider it at the hearing on equitable relief.

The district court did not, as it is required to do, merely exercise its limited discretion, in 

light of the jury’s verdict, to shape prospective equitable relief “to make a victim of 

discrimination ‘whole’ and to restore him or her to the economic position he or she would have 

occupied but for the unlawful conduct of his or her employer.” Barbour v. Merrill, 48 F.3d 1270, 

1279 (D.C. Cir. 1995) (citation omitted). Instead, the court’s own statements at hearing make 

plain that the court instead impermissibly nullified the jury’s binding factual findings by 

substituting its own. Once a jury has determined the facts concerning post-1991 Act 

discrimination, as it did here, the court is not free to disregard or contradict them, as the 

previously-cited cases make clear.

The district court's fundamental (and legally impermissible) disagreement with the jury’s 

discrimination findings underlay each element of its ruling with respect to equitable relief. The 

district court’s view that the dismissal was valid, notwithstanding the jury’s finding to the 

contrary, led the court to limit Deputy Fogg’s back pay award to the period ending on the date of 

the dismissal. It also caused the district court to reject the request to expunge the dismissal from 

Deputy Fogg’s records, and to reject any form of prospective relief, be it reinstatement or front 

pay. Because the district court was not entitled to disregard the jury's findings, each of the 

elements of equitable relief that Deputy Fogg requested and the district court rejected must 

indeed be “revisited.” as the district court anticipated.

26



III. DEPUTY FOGG’S DISMISSAL, ASIDE FROM VIOLATING TITLE VII, 
ALSO WAS PROCEDURALLY INVALID. THE CONTRARY FINDING 
OF AN MSPB ADMINISTRATIVE LAW JUDGE WAS ARBITRARY AND 
CAPRICIOUS, AN ABUSE OF DISCRETION, NOT SUPPORTED BY 
SUBSTANTIAL EVIDENCE AND OTHERWISE NOT IN ACCORDANCE 
WITH LAW.

Deputy Fogg challenged his dismissal before the MSPB. An MSPB 

Administrative Law Judge found that the dismissal was not procedurally defective. App. 

A907-920. Deputy Fogg appealed that finding to the district court, which upheld that 

finding from the bench and in a written order at the start of the trial. App. A40, A91 -108. 

Given, however, the jury verdict holding that the dismissal was racially motivated and in 

violation of Title VII, the resolution of this issue should be immaterial. However, if the 

district court’s improper nullification of that verdict is not overturned, as urged in the 

previous Section, the Court must consider the merits of the appeal on this issue.

In a mixed case such as this, review of the MSPB decision is subject to the 

administrative law formulation of arbitrary and capricious, an abuse of discretion, not 

supported by substantial evidence and otherwise not in accordance with law. 5 U.S.C.

§ 7703(c)(3); see Butler v. West, 164 F.3d 634, 639 n.10 (D.C. Cir. 1999).

In 1995, approximately three years after Deputy Fogg left the USMS active 

payroll and while he was receiving workers compensation, the USMS went to great effort 

to orchestrate his formal dismissal from the agency on grounds of insubordination.

Deputy Fogg purportedly was dismissed for failing to report for two fitness-for-duty 

examinations that had been improperly ordered and that, in any event, had been 

postponed. In actual fact, Deputy Fogg was dismissed for failing to report for a third 

examination that had not been scheduled and that he had not refused to take.

27



A. There Was No Lawful Basis For The Dismissal.

"Insubordination" in the context of adverse agency action against a federal employee 

means a "willful and intentional refusal . . .  to obey an authorized order of a superior officer 

which the officer is entitled to have obeyed." Webster v. Department of the Army, 911 F.2d 679, 

684 (Fed. Cir. 1990) (citation omitted), reh'g en banc, denied, 926 F.2d 1149, (Fed. Cir.), cert, 

denied, 502 U.S. 861 (1991).

There are two elements to a charge of insubordination. First, there must be willfulness 

and intent. It is not enough that an order was disobeyed — it must have been disobeyed with a 

considerable measure of deliberateness. Second, the order must have been one that the officei 

was entitled to have obeyed. There is no such thing as unquestioned authority in the federal 

personnel system. Neither of those elements were present here.

1. The USMS did not identify the specific position that would
accommodate Deputy Fogg’s disability and permit a fitness-for-duty 
psychiatric examination.

The special conditions under which an agency may order an employee receiving workers 

compensation to report for a fitness-for-duty examination are set forth in 5 C.F.R. Part 339.301 

(c): “An agency may require an employee who has applied for or is receiving continuation of 

pay or compensation as a result of an on-the-job injury or disease to report for an examination to 

determine medical limitations that may affect placement decisions.” The meaning of this is clear 

from the history of this provision.

In 1984, OPM amended the Civil Service Regulations in response to complaints about 

agency abuse of fitness-for-duty examinations. In pertinent part, the regulation was amended by 

the addition of language that provided

Limited authority to require medical information in those situations where the
agency has identified a specific assignment or position to which the agency can



assign the employee if the medical condition is compatible with the duties ot the 
job .Guidance issued by OPM, in conjunction with the Department of Labor, will 
require that the employee be informed o f the duties o f the assignment or position 
at the time the medical information is required . . .

49 Fed. Reg. 1321, 1329 (1984) (emphasis added). See Abatecola v. Veterans Administration,

29 M.S.P.R. 601, 1986 MSPB LEXIS 1443 at *5-7 (1986), a ff  d, sub nqnu Abatecola v. Mgrit

Systems Protection Board, 802 F.2d 471 (Fed. Cir. 1986).

The pertinent language was simplified to its present form in 1989, solely to allow 

agencies specific authority to examine employees injured on the job, but only for the purpose of 

determining employees’ qualifications for reemployment, not for entitlement to compensation.

54 Fed. Reg. 9761 (1989). At the same time, the language in 5 C.F.R. Part 339.301 (e) with 

respect to psychiatric examinations was “tightened” to require a two step process in a psychiatric 

fitness-for-duty examination, _ixm a general medical exam followed by the actual psychiatric 

examination. Id

In sum, an agency is under no obligation to find a position for a disabled employee 

receiving workers compensation. But absent an effort to find a specifically identifiable position 

for the employee, an agency cannot use a fitness-for-duty examination to second-guess the 

Department of Labor physicians or to otherwise harass the employee.

The Administrative Law Judge, citing Abatecola, disagreed that the agency needs to have 

a specific position in mind when it issues the fitness-for-duty order. App. A913-914. That is not 

what the history of the regulation teaches, and it is not what the cited case held.

In Abatecola, the employee was an accountant receiving workers compensation because 

of back and hand injuries. The order to report for a fitness-for-duty examination, issued after the 

Department of Labor had denied him further workers compensation, nonetheless “identified a

29



specific assignment -  appellant's position of record.” Abatecola. 1986 MSPB LEXIS 1443 at *6. 

The Board found that this complied with Part 339.301 (c). All the Board held was that the 

agency did not first have to definitively establish that the employee could perform in the 

identified position. Citing the history of the regulation, however, the Board noted that the 

agency did need to have “reason to believe that an employee who is receiving workers 

compensation benefits may be capable of performing the duties of either his or her original 

position, a modified or restructured job, or a different position.” Id. at *10 (emphasis added).

In the course of at least seven examinations, no psychiatrist, psychologist or physician 

ever concluded that Deputy Fogg was able to return to work for the USMS until and unless the 

EEO complaints had been resolved. When Deputy Fogg obeyed the illegal order to return to 

work at the Marshal’s office in U.S. District Court, all of his symptoms immediately reappeared. 

There was absolutely no reason to believe that he could occupy his prior position as a Deputy 

U.S. Marshal anywhere within the USMS. At most, there was slight reason to believe that he 

might be able to return to work, as one examining psychiatrist found, “outside the purview of the 

USMS, a place uncontaminated by the current complex litigious process.” App. A859.

Nevertheless, the direction in 1995 to report for a fitness-for-duty examination 

specifically was “related to your medical competency to perform the fu ll range o f your duties.” 

App. A867 (emphasis added). No pretense was made of finding a position that the USMS 

reasonably believed he would be capable of filling. It is exactly this disconnect between the 

facts of Deputy Fogg’s disability and the order to report which led him to file the district court 

action and to seek to enjoin the order.

The most the ALJ could muster in support of the USMS's position, apart from his 

misreading of Abatecola. was a finding that the Deputy Director, although unaware of any of the

30



specifics of Deputy Fogg's situation and although he “put the cart before the horse." nonetheless 

“was attempting to find a position for appellant that would avoid the problems that had caused 

his work-related stress and depression.” App. A913. Apart from a complete lack of evidence 

supporting this gloss on the Deputy Director’s intentions, even if true those intentions did not 

materialize into an order to report consistent with Part 339.301 (c). Moreover, the USMS was 

given more than ample opportunity to rehabilitate this legal deficiency, through and including 

Deputy Fogg’s counsel’s request that the agency fully explain the purpose of the order before 

Deputy Fogg reported for the examination. App. A873-874. The USMS did not do so, because 

it could not. Any explanation the USMS offered would have been patently pretextual.

2. Deputy Fogg was under no obligation to obey an ultra vires order to 
report for a psychiatric fitness-for-duty examination.

Deputy Fogg was ordered to report for a psychiatric fitness-for-duty examination that was 

unlawful, he., ultra vires, on its face. The ALJ concluded that Deputy Fogg nonetheless was 

required to report because it was not a “clearly dangerous situation, citing Frickey_y.

Department of the Army. 61 M.S.P.R. 475, 480 (1994) (dissent), and a psychiatric examination 

was not involved, citing Harris v. Department of the Air Force, 62 M.S.P.R. 524, 529 (1994), 

review dismissed. 39 F.3d 1195 (Fed. Cir. 1994). App. A914. Under these MSPB precedents, a 

federal employee is expected to obey an ultra vires order on the theory that he or she can later 

grieve it. An exception, however, is made: (i) when compliance with the order would be 

dangerous; and (ii) for ultra vires psychiatric examinations since they are “invasive of an 

employee’s privacy.” Harris, 62 M.S.P.R. at 529.

The latter exception directly applies here. The USMS did order Deputy Fogg to report 

for an ultra vires fitness-for-duty psychiatric examination. As discussed above, Pait j j 9.j>01 (e) 

was amended in 1989 to make a psychiatric examination a two-step process, re., a medical exam

31



followed by the interview with a psychiatrist. That is why the order to report stated that you 

will be scheduled for a psychiatric exam upon successful completion of the first exam and any 

necessary follow-up/’ App. A867. It would elevate form over substance to hold that the ultra 

vires examination was not psychiatric because the required first part ot the examination would 

have been blood work.

B. There Is No Evidence That Deputy Fogg Willfully And Intentionally Refused 
To Report For A Fitness-For-Duty Examination.

Deputy Fogg was charged with insubordination for failing to report for fitness-for-duty 

examinations on January 4 and January 17, 1995. The ALJ concluded that since (i) the 

examinations were ordered and (ii) Deputy Fogg did not report, he willfully and intentionally 

disobeyed an order. App. A915. The ALJ ignored all of the intervening facts.

Even Mr. Coon, the officer who fired Deputy Fogg, conceded that he “was willing to give 

him the benefit of the doubt for failing to appear for the first scheduled appointment. . App. 

A902 . The facts show why he was so inclined. The first examination was scheduled to begin in 

the middle of the hearing on Deputy Fogg’s pro se motion for a temporary restraining order 

enioining the examination. Neither Deputy Fogg, nor Judge Sporkin, nor Judge Urbina, nor 

anyone in the USMS, expected him to appear for the first examination given those 

circumstances.

A USMS attorney conveyed the second examination date, January 17, to Deputy Fogg on 

the afternoon of January 4. App. A870-871. Deputy Fogg in good faith promptly wrote to the 

examining physician to advise him that, because of the pending decision on his request for a 

TRO, he could not commit to that date, but that he was willing to be examined at some time, 

dependent on the ruling by Judge Harris, and asked that the appointment be rescheduled. App.



A872. It was not until several months later that Deputy Fogg learned that the physician had not 

received the January 4-postmarked letter until May 3. App. A975.

None of these facts made their way into the disciplinary panel’s purported consideration 

of the case, nor did the ALJ give them effect. App. A916-917, A748-749. These facts are 

consistent with the next step in the process, which was the inquiry by the USMS of Deputy 

Fogg’s counsel in August 1995 as to whether Deputy Fogg would then be willing to report for 

the examination. That request was not refused. Instead, counsel directed written questions to the 

USMS asking for an explanation of why this was happening and for the terms of reference for 

the examination. App. A873-874. The USMS never responded to that letter. Instead, it fired 

Deputy Fogg predicated on the purported failure to report for the earlier examinations. App. 

A875-876.

Quite simply, there is nothing in the record demonstrating, or even suggesting, that 

Deputy Fogg willfully and intentionally disobeyed an order.

C. The USMS Failed To Give Adequate Consideration To The 
Requisite Mitigating Factors In Determining The Applicable 
Penalty For Deputy Fogg’s Alleged Insubordination.

In reviewing a disciplinary action by a federal employer, a court must decide whether the 

penalty was reasonable under the mitigating factors set forth by the MSPB in Douglas v. 

Department of the Air Force. 5 M.S.P.R. 280 (1981). See Pope v. U.S. Postal Service, 114 F.3d 

1144, 1147 (Fed. Cir. 1997). Additionally, if some but not all of the bases for the disciplinary 

action are overturned, the case should be remanded to the agency for reconsideration of the 

Douglas factors.

Douglas identifies twelve factors relevant to disciplinary action. All of those factors

apply here:



1. The nature and seriousness of the offense, and its relation to the employee s duties, 

position, and responsibilities, including whether the offense was intentional or technical 

or inadvertent, or was committed maliciously or for gain, or was frequently repeated.

2. The employee's job level and type of employment, including supervisory or fiduciary 

role, contacts with the public and prominence of the position.

3. The employee's past disciplinary record.

4. The employee's past work record, including length of service, performance on the job, 

ability to get along with fellow workers, and dependability.

5. The effect of the offense upon the employee's ability to perform at a satisfactory level 

and its effect upon supervisors' confidence in the employee's ability to perform assigned 

duties.

6. Consistency of the penalty with those imposed upon other employees for the same or 

similar offenses.

7. Consistency of the penalty with any applicable agency table of penalties.

8. The notoriety of the offense or its impact upon the reputation of the agency.

9. The clarity with which the employee was on notice of any rules that were violated in 

committing the offense, or had been warned about the conduct in question.

10. Potential for the employee's rehabilitation.

11. Mitigating circumstances surrounding the offense such as unusual job tensions, 

personality problems, mental impairment, harassment or bad faith, malice or provocation 

on the part of others in the matter.

12. The adequacy and effectiveness of alternative sanctions to deter such conduct in the 

future by the employee or others.

34



A fair application of these mitigating factors to Deputy Fogg's situation would have 

resulted in no sanctions being imposed, let alone the most severe sanction available to the 

USMS. Deputy Fogg did not have an active position with the USMS when he was terminated in 

September 1995. He had been on leave for two and one-half years, including approximately one 

and one-half years without pay (but receiving workers compensation because of his 

discrimination-induced disability). The USMS dismissed Deputy Fogg for insubordination in 

failing to report when it simply could have removed him for prolonged absence — as it would 

have done in any event had he not been terminated. Moreover, there is no suggestion that 

Deputy Fogg acted maliciously or for gain. Indeed, the USMS counsel who worked closest with 

Deputy Fogg in the EEO settlement negotiations believed him to be "sincere" and that "he felt 

that he had been subject to harassment, to discrimination both based on his race and reprisal." 

App. A885. From a policy viewpoint, while it may be appropriate to hold federal law 

enforcement officers to a somewhat higher standard than other federal employees, that hardly 

applies to a person who has not worked in that position for two and one-half years.

Deputy Fogg had not been the subject of prior discipline. Moreover, he had an enviable 

service record, recognized and commended not only by the USMS but by other law enforcement 

organizations. Neither the Panel nor Mr. Coon considered this factor. Since Deputy Fogg was 

not on active duty, the alleged offense had no effect upon his performance.

The table of penalties applicable to USMS employees identifies the penalties for a first 

offense of insubordination as ranging from reprimand to dismissal. The Disciplinary Panel did 

not even consider a lesser penalty than dismissal, and Mr. Coon adopted its recommendation. 

App. A752-754. A875-876. Deputy Fogg’s offense was not “notorious,’' and his case is unlikely 

to be replicated, ever — particularly given the positive impact his case has had on the careers ot



African-Americans within the USMS. I he penalty of dismissal serves as neither a deterrent nor

a precedent. It is punitive, no more and no less.

The disciplinary panel and Mr. Coon simply ignored most of the Douglas factors and 

paid no more than lip service to the others. The ALJ found that ‘'although removal is a severe 

penalty, I do not find that it exceeds the tolerable limits of reasonableness.” App. A920. He

based that leap of faith on two MSPB precedents which upheld dismissal for refusal to report for

8
a fitness-for-duty examination in easily distinguishable, fact-specific situations.

The irrational severity of the penalty was one of the facts underlying the jury s verdict.

But it also provides independent grounds for overturning the dismissal.

IV THE DISTRICT COURT’S FINDINGS WITH RESPECT TO THE
DISCRIMINATORY CONDUCT OF THE USMS FROM 1985 THROUGH 
NOVEMBER 1991 ARE CLEARLY ERRONEOUS.

The jury returned an advisory verdict in favor of Deputy Fogg with respect to five 

instances of racial discrimination from 1985 through late 1991, be,, the pre-1991 Act causes of 

action: (1) a racially hostile work environment throughout; (2) his reprimand by Chief Hein and 

his transfer to Superior Court; (3) the failure to take action on his 1985 EEO complaint with 

respect to that incident; (4) the failure to give him annual performance ratings beginning in April 

1990; and (5) the failure to promote him to a GS-13 criminal investigator position in May 1990 

(the “Earp promotion”). App. A821-822. The jury found in favor of the USMS with respect to a 8

8 In Abatecola, the employee had deliberately and specifically failed to report for four non­
psychiatric fitness-for-duty examinations, having received written reprimands for the first 
three failures to report. In Reynolds v. Department of Justice, 63 M.S.P.R. 189 (1994). 
appeal dismissed, 36 F.3d 1112 (Fed. Cir. 1994), the employee had been dismissed after 
failing to report for two non-psychiatric fitness-for-duty examinations, and the only issue was 
whether she had received the notices. On the other hand, in Nickerson v. U.S. Postal Service, 
49 M.S.P.R. 451 (1991). a removal for failing to report for two non-psychiatric fitness-for- 

(continued...)

36



1986 promotion, App. A822, and Deputy Fogg, out ot respect for the jury, did not ask the district 

court to make a contrary finding.

The district court, however, found, contrary to the jury's advisory verdict, that [Deputy 

Fogg] has failed to prove that he was personally subjected to race discrimination or retaliation in 

any of the particular incidents alleged,” and the court “decline[d] to make its own findings with 

respect to the claim of hostile environment antedating 1991 as being unnecessary in light of the 

remittitur.” App. A45-46 (emphasis added). The district court's finding with respect to the pre- 

1991 Act discriminatory actions is subject to a “clearly erroneous” standard of review pursuant 

to Fed. R. Civ. P. 52(a).

The District Court’s refusal to accept the jury’s advisory verdict as to the five pre-1991 

Act instances of discrimination was clearly erroneous. If Deputy Fogg truly is to be made whole, 

the district court’s judgment with respect to the pre-1991 Act causes of action must be reversed 

to comport with the law and the facts.

A. The Burden On Deputy Fogg Was To Prove That The Reasons Proffered By 
The USMS For Its Discriminatory Conduct Were Not Credible. Evidence Of 
A Hostile Work Environment, When Paired With The Facts Of A 
Discriminatory Action, Meets That Burden.

Deputy Fogg recognized and met his burden of establishing that adverse action 

was taken against him and that the non-discriminatory reasons advanced by the USMS 

for such actions were pretextual, he., that they were not credible. See Regvesw,

Sanderson Plumbing Products. Inc.. ___U .S.___ , 120 S. Ct. 2097, 2102 (2000). Proof

(...continued)
duty examinations was reduced to a 120-day suspension after consideration of the Douglas 
factors.

37



of a racially hostile work environment may provide circumstantial corroboration of

individual acts of discrimination:

While evidence of a discriminatory atmosphere may not be 
conclusive proof of discrimination against an individual plaintiff, 
such evidence does tend to add '‘color’' to the employer’s 
decisionmaking processes and to the influences behind the actions 
taken with respect to the individual plaintiff.

Conway v. Electro Switch Corn., 825 F.2d 593, 597 (1st Cir. 1987); cited with approval in Parker 

v. Secretary. 891 F.2d 316, 322 (D.C. Cir. 1989) (evidence “relevant to establishing the existence 

of a discriminatory atmosphere, which in turn could serve as circumstantial evidence of 

individualized discrimination.”); Townsend v. Washington Metropolitan Area Transit Authority, 

746 F. Supp. 178, 185 (D.D.C. 1990) (“the Court must consider the [employment] decision 

within the context of the employer’s general attitude towards members of the plaintiff s 

protected class.”).

The district court seemed to be of two minds on this burden. While it found no basis for 

overturning the jury’s binding verdict as to post-1991 Act conduct, in substantial part because of 

the evidence of a hostile racial environment within the USMS, it utterly ignored that evidence in 

reviewing the pre-1991 Act actions of the USMS. That failure, when measured against the 

largely undisputed facts concerning those actions, is grounds for reversal.

B. The Patent Racial Hostility Within The USMS And The Facts Of The 
Numerous Individual Discriminatory Acts Taken Against Deputy Fogg 
Establish Pretext.

1. Racially hostile work environment prior to November 21,1991.

The USMS’s argument with respect to hostile work environment comes down to this: the 

USMS is a large agency; there are racial biases in every large agency; therefore, there is nothing 

hostile about the environment at the USMS. App. A395.



The USMS is correct that there are racial biases, but that problem cannot be written off as

some sort of generic, institutional quirk. With respect to working deputies out in the field,

Marshal McKinney testified that he believed African-Americans are not promoted fairly and are

subject to inordinate disciplinary action. App. A306-307. The Skagen Report, which was the

result of an investigation undertaken in 1991 because of those problems, quantified many such

instances. Although the report is less than forceful, it did find that:

There is, however, a significant disparity between levels of job 
satisfaction experienced by White and Black employees. Women, 
minorities and some White males, who feel excluded from the 
power structure, tend to believe in the existence of a “good old boy 
network,” which-in the past at least-has been thought to manipulate 
the promotion and assignment process(es).

App. A856.

From management’s perspective, the picture is the same. Chief Deputies Griffin and 

Parker testified as to both individual instances of discrimination and an overall environment that 

was not a level playing field for African-Americans. App. A304-305, A465-467. Marshal 

Rutherford agreed that it was particularly difficult for African-American managers who were 

perceived differently than their White counterparts. App. A271-272. Finally, the then-current 

Director of the USMS conceded that the Service has long-standing problems with respect to its 

African-American employees. App. A393-395.

The source of the problem also is clear. The “old boys network” mentioned in the 

Skagen Report was alive and well at the USMS and had been in place from time immemorial.

The Service is an unusual federal agency, with a relatively small number of employees (fewer 

than 4,000) and a high number of Presidential appointees (one for each judicial district plus the 

Director). This places an inordinate amount of control in a small, centralized headquarters staff 

and lends itself to a steep racial pyramid:

39



Level All Emplovees Black Emnlovees/%

SES 8 0/0%
Chief Marshal 105 5/4.8%
Criminal Invs. 2,560 196/7.7%
Administrative 1,158 209/18%

App. A925-928.

This pyramid indicates both cause and effect. It was created and maintained by a “merit 

promotion system under which African-Americans had to show extraordinary merit just to get a 

competitive promotion while their White counterparts could get moved up through accretion of 

duties and other non-competitive measures. App. A330-346.

The record thus clearly shows a broad pattern of racial discrimination at the USMS. This 

broad pattern not only represents a cause of action in itself, but also establishes the existence of 

the discriminatory atmosphere at the USMS that corroborates the various individual acts of 

discrimination against Deputy Fogg to which we not turn.

2. The Hein reprimand and Deputy Fogg’s removal from 
the Welch/Columb Task force and transfer to Superior 
Court.

Marshal Rutherford testified that he told Chief Hein to first find out if Deputy Fogg had 

misused a government vehicle and then, if  he had misused the vehicle, to chew him out and send 

him to Superior Court. App. A256-257. Chief Hein quickly learned that Deputy Fogg had not 

misused a vehicle (as confirmed by all of Deputy Fogg’s supervisors)9 but nevertheless chewed

9 The alleged misuse of a government vehicle is pretext of the highest order. Deputy Fogg was 
on a high profile fugitive hunt and was expected to be available twenty-four hours a day.
That meant he needed his specially-equipped automobile with him at all times. This explains 
why Deputy Fogg and ah of his supervisors were at a loss to explain what Chief Hein was 
doing at the meeting when he accused Deputy Fogg of misuse of a vehicle and then went off 

(continued...)

40



him out severely in front of those supervisors for a variety of other imagined offenses. Chief 

Hein then transferred Deputy Fogg to Superior Court and removed him from the Welch/Columb 

Task Force. App. A140, A256-258, A430-431. Chief Hein also called Chief Parker and told 

him to “make life miserable” for Deputy Fogg at Superior Court. App. A444. Chief Hein 

contradicted this evidence only to the extent that he left out the “if  part of Marshall Rutherford s 

instructions. App. A493-494. In Chief Hein’s version, which is contradicted by Marshal

Rutherford’s testimony, he only followed orders.

Chief Hein’s actions against Deputy Fogg cannot be justified as proper disciplinary 

measures. He wanted to discipline Deputy Fogg, and when he found there were no legitimate 

grounds for doing so, he became enraged and invented some. Chief Hein obviously was an 

angry man, and that anger was directed a disproportionate amount of the time at African- 

Americans. Flis racial animus towards African-Americans is spread out all over the record from 

a racially-insensitive joke he told at a retirement party to a series of incidents involving his 

African-American peers and subordinates. App A460-467. Even Marshal Rutherford, one of 

Chief Hein’s friends and sponsors, concluded that Hein had difficulty managing African- 

Americans. App. A260-264.

The USMS’s response to this below was to argue that the Flein incident and the 

subsequent transfers were not adverse actions within the ambit of Title VII, that they were no 

more than “workplace slights.” Citing Taylor v. Federal Deposit Insurance, Carp,, 132 F.3d 753,

on a tirade. They all agreed they had never seen anything like it. App. A244-245. A290-291, 
A540-543.

41



764-5 (D.C. Cir. 1997), the USMS argued that actionable adverse action must rise to the level of 

an ultimate employment decision.

That is not the law in this circuit. Taylor was a “whistleblower” action, and the court 

looked at Title VII cases only by way of analogy. The Taylor court noted that there was a split 

in the circuits on this and that the D.C. Circuit specifically had refrained from deciding the issue 

in the context of Title VII, citing Mungin v. Katten Muchin & Davis, 116 F.3d 1549, 1555 (D.C. 

Cir. 1997). Id  at 764.10 However, the D.C. Circuit has held that identical language in the Age 

Discrimination in Employment Act reaches any action having more than a de minimis adverse 

impact on an employer. See Passer v. American Chemical Society, 935 F.2d 322, 331 (D.C. Cir. 

1991).

As summarized by Judge Harris in Batson v. Powell, 912 F. Supp. 565, 576 (D.D.C. 

1996), “retaliation” includes, for example: “harassment, disciplinary demotion, suspensions with 

pay, unjustified evaluations and reports, loss of normal work assignments, denial of letters of 

commendation, statements to prospective employers, or termination.” See also Haves v. Shalala, 

902 F. Supp. 259, 267 (D.D.C. 1995).

In any event. Deputy Fogg’s retaliatory transfers did rise to the level of ultimate 

employment actions. The Welch/Columb Tasks Force was a highly visible, career-enhancing 

assignment. A Superior Court assignment, on the other hand, was neither visible nor career-

10 A more detailed discussion of the circuit split is found in Wideman v. Wal-Mart Stores. Inc.. 
141 F.3d 1453, 1456 (11th Cir. 1998). Three circuits (the Fourth, Fifth and Eighth) apply 
something close to the draconian definition urged by the USMS. Four circuits (the First. 
Ninth, Tenth and Eleventh) allow claims for adverse actions falling short of ultimate 
employment decisions.



enhancing, particularly at that time. 7 ransfer from one to the other was viewed by all as 

punishment, and severe punishment at that. App. A141-142, A257, A301-j 02.

3. The failure to take timely action on Deputy Fogg’s 1985 
EEO complaint.

Immediately after the Hein incident and the transfers in 1985, Deputy Fogg 

initiated the EEO procedures at the USMS. App. A140-143. The investigation of his complaint 

by the Justice Department, the USMS’s parent agency, did not begin until 1990 and by 

November 1991 it was nowhere near completion. The jury found that justice delayed was justice 

denied, and that this delay was an act of discrimination against Deputy Fogg."

There is no rational explanation for this delay other than retaliation. It was not complex 

— witness the clear picture of what happened as developed at the trial. But it did suffer from 

two deficiencies.

First, as Marshall Rutherford testified, if Deputy Fogg were white, his discrimination 

claims would have been remedied sooner. App A276. Second, Deputy Fogg had challenged one 

of the favorite sons of the USMS all-white hierarchy. Chief Flein testified that when, in 1989, 

his nomination to become U.S. Marshall for District of Columbia Superior Court was stalled in 

the Senate because of the delays in handing the complaints of Deputy Fogg and other African- 

American deputies, he urged the new Director of the USMS, Judge Moore, to start action on 

those complaints. Chief Hein testified that he wras told Judge Moore declined to do so because it 

was “strictly political” App. A456-457. 11

11 The jury was not presented with the issue of delays after November 21, 1991, in part because 
the exclusion of evidence with respect to settlement discussions made it difficult, if not 
impossible, to discuss that sequence of events. As counsel noted, however, it took fi fteen 
years to, in effect, get this matter from the first floor of the U.S. Courthouse to the second.

43



When four years have gone by without action on an EEO complaint against a high 

ranking official of an agency, and an affirmative decision not to take action is then made by the 

head of that agency, we have moved well past excusable delay and well into brazen retaliation. 

Deputy Fogg is not collaterally attacking the EEO procedures or the manner of the investigation. 

That is the point. There were no procedures or investigations to challenge. Deputy Fogg relied 

on the administrative scheme intended to be an employee’s first line of relief under Title VII. He 

was denied relief solely by inaction, and that inaction was as purposeful as it was harmful.

4. The failure to give Deputy Fogg annual performance ratings 
beginning in April 1990.

The USMS concedes that Deputy Fogg did not receive performance evaluations for the 

two year period beginning in April 1990.12 This covered most of the time he was acting in a 

highly successful supervisory role on the Metropolitan Area Task Force, at a non-supervisory 

grade. It also paralleled the investigation (at last) of his initial EEO complaint against Chief 

Hein.

Deputy Fogg raised this issue, repeatedly. Morris Davis, the DEA Assistant Special- 

Agent-in-Charge, raised the issue. App. A764-765. Even Tony Perez, the supervisor Deputy 

Fogg replaced on the Task Force when he moved to headquarters, acknowledged the issue. App. 

A688-693. Yet no performance evaluations emerged. Plainly, this would not have happened to 

Deputy Fogg but for the color of his skin and his complaint against Chief Hein. The trier of fact 

has every right to infer from the evidence that the USMS’s explanation for this adverse action 

was pretextual.

12 There can be no dispute that the failure to give performance evaluations is an adverse action 
— you cannot get promoted without them. App. A601, A767.

44



5. The Earp promotion in May 1990.

In May 1990, Deputy Fogg was second on the merit certification list for two promotions 

for a Grade GS-13 criminal investigator position. Fie was a GS-12 at the time. The then 

Director of the USMS, Judge Moore, personally intervened, as permitted by the USMS’s “merit” 

promotion system. Judge Moore selected the highest rated applicant, Deputy Cunier (with a 

score of 93.5) but passed over Deputy Fogg (with a score of 87.5) in favor of the applicant rated 

fourteenth, Deputy Earp, a White deputy, because of a long-standing friendship going back to his 

days in the U.S. Attorney’s office in Tallahassee. Chief McKinney, who had personally 

recommended Deputy Fogg for the promotion, found this action to be extraordinary. App. 

A605-606.

Raising cronyism as a defense is not exactly taking the high ground, but that is what the 

USMS did here. According to the USMS, Judge Moore had the right to choose a friend and 

there is no evidence that he did so because of any racial animus. The USMS asks the wrong 

question. This is not about why Judge Moore selected Earp. It is about why he de-selected 

Deputy Fogg rather than Cunfer, a White deputy.

Judge Moore wanted to move his buddy up from Florida. He has two positions he could 

fill, with two highly qualified applicants at the top of the list for those positions. Earp was not 

highly qualified, but Judge Moore testified that he did not put much faith in the merit scores, that 

he believed they were “skewed” in favor of deputies with headquarters experience (of which 

Deputy Fogg had none at that time). Deputy Fogg was known to Judge Moore, as was his race 

and EEO activities. At this point in his career, early 1990, Matt Fogg was one of the better 

known deputies within the USMS, for his accomplishments as well as for his complaint against

Chief Hein.



The foregoing demonstrates that the jury's pre-1991 Act advisory verdict was clearly

correct and the District Court’s refusal to accept that verdict was clearly erroneous.

Conclusion

Deputy Fogg requests that: (i) the remittitur be reversed and the case be remanded to the 

district court for recalculation of Deputy Fogg’s compensatory damages; (ii) the case be 

remanded to the district court for reconsideration of Deputy Fogg’s motion for equitable relief 

consistent with the jury’s binding verdict regarding post-1991 Act discrimination; (iii) if 

necessary, the MSPB decision be reversed, Deputy Fogg’s termination be declared unlawful and 

rescinded and the case be remanded to the district court for reconsideration of Deputy Fogg’s 

motion for equitable relief; and (iv) that the district court’s finding with respect to the pre-1991 

Act conduct of the USMS be reversed.

Respectfully submitted,

Scott M. Zimmerman
D.C. Bar No. 437158
ZUCKERT, SCOUTT & RASENBERGER. L.L.P. 
888 17™ Street, N.W.
Washington, D.C. 20006 
Tel: 202-298-8660 
Fax: 202-347-0683

Attorneys for Appellant 
Matthew F. Fogg

* Counsel of record

46



Certificate Of Compliance With Fed. R. A dd. P- 32(A)(7)(B)

I hereby certify that the foregoing brief (including footnotes, but excluding the table of 

contents, table of authorities, glossary, statutory addendum, and certificates of counsel) contains 

13,935 words.

Frank J. Costello \ 
D.C. Bar No. 2643
Attorney of Record for Plaintiff/Appellant, 
Matthew F. Fogg

47



ADDENDUM



Addendum

1. 42 U.S.C. § 1981a ........................................................................................................... Add. 1

2. 5 C.F.R. Part 339.301 .....   Add. 4

3. 137 Cong. Rec. S I5483 (October 20, 1991) .................................................................. Add. 5

4. 137 Cong. Rec. H9526 (November 7, 1991 ).................................................................. Add. 9



Ch, 21 GENERALLY 42 § 1981a

§  1 9 8 1 a .  Dam ages in  cases o f in ten tio n a l d iscrim ination  in  
em ploym ent

(a) R ight o f recovery
(1) Civil rights

In  an  action brought by a com plain ing  party  u n d er section 706 
o r 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5) [42 
U.S.C.A. §§ 2000e-5 o r 2000e-16] against a responden t who 
engaged in unlawful in ten tional d iscrim ination  (not an  em ploy­
m ent p ractice that is unlaw ful because of its d ispara te  im pact) 
prohibited under section 703, 704, o r  717 of the Act (42 U.S.C. 
2000e-2 o r 2000e-3) [42 U.S.C.A. §§ 2000e-2, 20Q0e-3, o r 
2000e-16], and provided th a t the com plaining p arty  cannot re ­
cover u nder section 1981 of th is  title, the  com plaining p arty  m ay 
recover com pensatory and  punitive dam ages as allow ed in  sub­
section (b) of this section, in  add ition  to  any re lief authorized  by 
section 706(g) of the Civil R ights Act of 1964 [42 U.S.C.A. 
§ 2000e-5(g)], from  the responden t.
(2) Disability

In  an  action brought by a  com plain ing  party  u n d er the pow ers, 
rem edies, and  procedures set fo rth  in  section 706 o r 717 of the

Civil Rights Act of 1964 [42 U.S.C.A. §§ 2000e-5 o r 2000e-16] 
(as provided in  section 107(a) of the Am ericans w ith Disabilities 
Act of 1990 (42 U.S.C. 12117(a)), and  section 794a(a)(l) of Title 
29, respectively) against a responden t w ho engaged in  unlawful 
intentional discrim ination (not an  em ploym ent p ractice th a t is 
unlawful because of its d isparate im pact) u nder section 791 of 
Title 29 and the regulations im plem enting section 791 of Title 29, 
or who violated the requirem ents of section 791 of Title 29 o r the 
regulations im plem enting section 791 of Title 29 concerning the 
provision of a reasonable accom m odation, or section 102 of the 
Americans w ith Disabilities Act of 1990 (42 U.S.C. 12112), or 
com m itted a violation of section 102(b)(5) of the Act [42 U.S.C.A.
§ 12112(b)(5)], against an  individual, the com plaining party  may 
recover com pensatory and punitive dam ages as allowed in sub­
section (b) of this section, in addition to any relief authorized by 
section 706(g) of the Civil Rights Act of 1964 [42 U.S.C.A.
§ 2000e-5(g)], from the respondent.

(3) Reasonable accommodation and good faith effort

In cases w here a d iscrim inatory p ractice involves the provision 
of a reasonable accom m odation p u rsu an t to section 102(b)(5) of 
the Americans with Disabilities Act of 1990 [42 U.S.C.A.
§ 12112(b)(5)] or regulations im plem enting section 791 of Title 
29, damages may not be aw arded u nder this section w here the 
covered entity dem onstrates good faith efforts, in consultation 
with the person with the disability who has inform ed the covered 
entity that accom m odation is needed, to identify and make a 
reasonable accom m odation that would provide such individual 
with an equally effective opportunity  and would not cause an 
undue hardship on the operation of the business.

Add. 1



§ 1981a CIVIL RIGHTS ch . 21

(b) Compensatory and punitive damages

(1) Determination of punitive damages
A complaining party may recover punitive damages under this 

section against a respondent (other than a government, govern­
ment agency or political subdivision) if the complaining party 
demonstrates that the respondent engaged in a discriminatory 
practice or discriminatory practices with malice or with reckless 
indifference to the federally protected rights of an  aggrieved 
individual.

(2) Exclusions from compensatory damages
Compensatory dam ages aw arded  u n d er this section shall not 

include backpay, interest on backpay, or any o ther type of relief

authorized u nder section 706(g) of the Civil Rights Act of 1964 
[42 U.S.C.A. § 2000e-5(g)].

(3) Limitations
The sum  of the am ount of com pensatory  dam ages aw arded  

under this section for fu tu re pecun iary  losses, em otional pain, 
suffering, inconvenience, m ental anguish, loss of enjoym ent of 
life, and other nonpecuniary  losses, and  the am oun t of punitive 
dam ages aw arded under this section, shall no t exceed, for each 
complaining party—

(A) in the case of a responden t who has m ore th an  14 and 
fewer than 101 em ployees in each of 20 o r m ore ca lendar 
weeks in the cu rren t o r preceding  ca lendar year, $50,000;

(B) in the case of a responden t who has m ore th an  100 
and fewer than 201 em ployees in each of 20 or m ore 
calendar weeks in the cu rren t o r  preceding ca lendar year, 
$100,000; and

(C) in the case of a resp o n d en t who has m ore th an  200 
and fewer than  501 em ployees in each of 20 or m ore 
calendar weeks in the cu rren t o r  p receding ca lendar year, 
$200,000; and

(D) in the case of a responden t who has m ore than  500 
employees in each of 20 or m ore ca lendar weeks in the 
curren t or preceding ca lendar year, $300,000.

(4) Construction
Nothing in this section shall be construed to lim it the scope of, 

or the relief available under, section 1981 of this title.

Add. 2



42 § 1981a CIVIL RIGHTS Ch. 21

(c) Jury trial

under ^  COmpensato^  or Pu^ tiv e  dam ages

(1) any p arty  m ay dem and  a  tria l by jury;
(2) the cou rt shall n o t inform  the ju ry  

described in  subsection (b)(3) of this section.
(d) Definitions

and
of the lim itations

As used in  this section:

(1) Complaining party
The term  "com plain ing  p a rty ” m eans—

(A) in  the  case of a  person  seeking to bring  an  action 
u nder subsection (a)(1) of this section, the Equal Em ploy­
m ent O pportunity Com m ission, the A ttorney G eneral o r "a 
person  who m ay b ring  an  action o r proceeding  u n d er title

VII of the Civil R ights Act of 1964 (42 U.S.C. 2000e et seq )• 
o r ’

(B) in the case of a person  seeking to bring an  action 
u n d er subsection (a)(2) of this section, the Equal Em ploy­
m ent O pportunity  Com mission, the Attorney General, a p e r­
son who m ay bring an  action o r proceeding under section 
794a(a)(l) of Title 29, o r a person  who m ay bring an  action 
or proceed ing  u n d er title I of the-Americans with Disabilities 
Act of 1990 (42 U.S.C. 12101 et seq.) [42 U.S.C.A. § 12111 et 
seq.].

(2) Discriminatory practice

The term  discrim inatory  p rac tice” m eans the discrim ination 
described in p arag rap h  (1), o r the discrim ination or the violation- 
described in p arag rap h  (2), of subsection (a) of this section.

(R.S. § 1977A, as added Pub.L. 102-166, Title I, § 102, Nov. 21, 1991, 105 
Stat. 1072.) ’  *

Add. 3



Subpart C—Medical Examinations
§339.301 A uthority to require an ex ­

am ination.
(a) A ro u tin e  p re a p p o in tm e n t ex am ­

in a tio n  is  a p p ro p ria te  o n ly  fo r  a  p o s i­
tio n  w hich  h a s  specific  m e d ic a l s ta n d ­
ards, p h y sica l re q u ire m e n ts , o r is  cov­
ered by  a  m ed ica l e v a lu a tio n  p ro g ra m  
es tab lish ed  u n d e r th e se  re g u la tio n s .

(b) S u b jec t to  §339.103 of th i s  p a r t ,  an  
agency  m a y  req u ire  a n  in d iv id u a l w ho 
has  app lied  fo r o r occupies a  p o s itio n  
w hich  has  m ed ica l s ta n d a rd s  or p h y s ­
ica l re q u ire m e n ts  or w h ich  is  p a r t  of an  
e s tab lish ed  m ed ica l e v a lu a tio n  p ro ­
gram , to  re p o r t  fo r a  m e d ica l e x a m in a ­
tion :

(1) P r io r  to  a p p o in tm e n t o r  se le c tio n  
(inc lud ing  reem p lo y m e n t on th e  b asis  
of fu ll or p a r t ia l  reco v ery  from  a  m ed­
ica l cond ition );

(2) On a re g u la r ly  re c u rr in g , perio d ic  
basis a f te r  a p p o in tm en t; or

(3) W henever th e re  is  a  d ire c t q u es­
tio n  ab o u t an  em p loyee’s c o n tin u e d  c a ­
p a c ity  to  m e e t th e  p h y sica l o r m ed ica l 
re q u ire m e n ts  of a po sitio n .

(c) A n agency  m a y  re q u ire  an  em ­
ployee who h as  app lied  fo r o r is  rece iv ­
ing  c o n tin u a tio n  of pay  o r co m p en sa ­
tio n  as a re s u lt  of an  on -the-job  in ju ry  
or d isease to  re p o r t fo r an  ex am in a tio n  
to  d e te rm in e  m edical l im ita t io n s  th a t  
m ay  a ffec t p la cem e n t decisions.

(d) An agency  m ay  req u ire  an  em ­
ployee who is  re leased  from  h is  o r h e r  
co m p e titiv e  level in  a  re d u c tio n  in 
force to  undergo  a re le v a n t m ed ical 
ev a lu a tio n  if  the  po sitio n  to  w hich th e  
em ployee has  rea ss ig n m e n t r ig h ts  has  
m ed ical s ta n d a rd s  or specific  physica l 
re q u ire m e n ts  w hich are  d iffe re n t from  
those  req u ired  in th e  em p lo y ee ’s c u r ­
re n t  p o sition .

..(e)(1) An ag en cy  m a y  o rd e r  a  psy - 
p ^ t H c  e x a m in a tio n  ( in c lu d in g  a  p sy ­
ch o lo g ica l a s se ssm e n t)  o n ly  w hen:

(1) T he r e s u l t  of a  c u r r e n t  g e n e ra l 
m ed ica l e x a m in a tio n  w h ich  th e  ag en cy  
h a s  th e  a u th o r i ty  to  o rd e r  u n d e r  th is  
s e c tio n  in d ic a te s  no p h y s ic a l ex p la ­
n a t io n  fo r b e h a v io r  o r  a c t io n s  w hich  
m a y  a ffe c t th e  safe and  e ff ic ie n t p e r ­
fo rm an ce  of th e  in d iv id u a l o r o th e rs , or

(ii) A p h y c h ia tr ic  e x a m in a tio n  is sp e­
c ific a lly  ca lled  fo r in  a  p o s it io n  h av in g  
m ed ica l s ta n d a rd s  o r s u b je c t to  a  m ed ­
ica l e v a lu a tio n  p ro g ra m  e s ta b lish e d  
un d er th is  p a r t .

(2) A p s y c h ia tr ic  e x a m in a tio n  o r p sy ­
cho log ica l a s se s sm e n t a u th o riz e d  u n d e r 
(i) or (ii) above m u s t be co n d u c ted  in 
acco rd an ce  w ith  a c c ep ted  p ro fess io n a l 
s ta n d a rd s , by  a  licen sed  p r a c t i t io n e r  or 
p h y s ic ia n  a u th o riz e d  to  c o n d u c t such  
e x a m in a tio n s , and  m a y  o n ly  be used  to  
m a k e  le g i t im a te  in q u iry  in to  a  p e r­
so n ’s m e n ta l  f itn e s s  to  su ccessfu lly  
p erfo rm  th e  d u tie s  of h is  o r h e r  posi­
tio n  w ith o u t undue  h aza rd  to  th e  in d i­
v id u a l o r o th e rs .

Add. 4



Pane i ot 6

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C IV IL  R IG H T S ACT OF 1991 (Senate - O ctober 30, 1991)

- y  [Page: S15483]

Mr. SIMPSON. Mr. President, I am pleased to speak in support of the Civil Rights Act of 1991. as 
amended by the Danforth compromise amendment.

This compromise legislation will improve the ability of civil rights plaintiffs to make their cases in 
disparate impact suits, because it will reverse the Supreme Court's ruling in Wards Cove versus 
Atonio on the matter of burdens of proof. However, the compromise bill wisely avoids the pitfalls of 
earlier versions of the bill, which made unwise and unnecessary' changes to other aspects of disparate 
impact law. This is a sensible resolution of the disparate impact issue, because it preserves the right 
of plaintiffs to make their case without creating adverse side effects in the workplace—such as quota- 
based hiring.

This bill will also overturn two Supreme Court decisions which almost everyone agrees needed 
revision: First, the Lorance case, regarding discriminatory seniority systems; and second, the 
Patterson case, which limited the right of plaintiffs to sue to remedy racial discrimination under 42 
U.S.C. 1981. This is another beneficial expansion of our civil rights laws for plaintiffs.

Finally, this compromise bill creates a new monetary' remedy for the victims of sexual harassment 
and other forms of intentional discrimination. Such a remedy does not exist in current law. Let there 
be no mistake about how broad, sweeping, and generous this portion of the bill is. I strongly endorse 
the concept of monetary relief for intentional discrimination. I cautiously endorse this specific 
remedy, because it opens the door to jury trials and compensatory and punitive damages, instead of 
the traditional labor-law remedy: Back pay, or double back pay. However, in the spirit of

compromise, I find this provision acceptable.

However, I will be watching this section closely as lawsuits are filed to exercise this new legal right. I 
am hopeful that we will achieve an appropriate balance here: Victims of sexual harassment and of 
other forms of intentional discrimination should have meaningful remedies: however, trial lawvers 
should not benefit inordinately from this section by charging large contingency fees and needlessly 
prolonging litigation. If I find that the victims of mistreatment in the workplace are benefitting much 
less than the lawyers who are bringing their cases, then I will be back to reexamine the damages 
section.

Finally. Mr. President, let me pay tribute to the three parties who made this legislation a reality: 
Senator Jack  D anforth , my lovely friend, for his tireless efforts to reach a bipartisan compromise; 
President Bush. John Sununu, and Bovden Gray, for their steady courage to criticize poor proposals 
and to endorse appropriate proposals: and my friend. Senator Kennedy, for his pragmatic approach to 
meaningful reform of our civil rights law.

The good-faith efforts of these three parties have produced for us all a bipartisan civil rights law.
Civil rights laws have some of the most dramatic effects on our society as any that Congress passes, 
and I believe such laws should always be bipartisan. I am pleased that one party is no longer trying to

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jam a civil rights law down another party's throat, and that this civil rights law will continue in the 
fine American tradition of bipartisan consensus.

Mr. President, I urge the adoption of the legislation.

INTERPRETATIVE MEMORANDUM

Mr. DANFORTH. Mr. President, I am pleased that Senator Kennedy has agreed with almost all of 
the original cosponsors, interpretative memorandum. I understand that he questions only the 
discussion in our memorandum that the original cosponsors, who are the authors of the effective date 
provision, do not intend for the bill to have any retroactive effect or application.

My review of Supreme Court case law supports my reading that in the absence of an explicit 
provision to the contrary, no new legislation is applied retroactively. Rather, new statutes are to be 
given prospective application only, unless Congress explicitly directs otherwise, which we have not 
done in this instance. Support for this proposition is derived from Justice Scalia's concurring opinion 
in K aiser A lum inum  & Chem ical Corp, v. Bonjorno, 110 S.Ct 1570, 1579 (1990), and the unanimous 
opinion of the Supreme Court in Bowen v. G eorgetown University Hospital, 488 U.S. 204, 208 
(1988), and the numerous cases cited by Justice Kennedy in Bowen.

I acknowledge that there appear to be two cases that do not adhere to this principle but instead 
support retroactive application of new statutes in the absence of'manifest injustice.’ Bradley v. 
R ichm ond School Board, 416 U.S. 696 (1974); Thorpe v. H ousing Authority o f  Durham, 393 U.S. 
268 (1969). The sponsors disapprove of these cases.

Our intention in drafting the effective date provision was to adhere to the principle followed by the 
vast majority of Supreme Court cases and exemplified by Bowen and Justice Scalia's concurrence in 
Bonjorno.

Subsection 22(b), regarding certain disparate impact cases, is intended only to provide additional 
assurance that the provisions of the bill will not be applied to certain cases that fit the provisions of 
that subsection. It should not be read in derogation of the sponsors' intention not to provide for 
retroactive effect or application as expressed in subsection 22(a) of the bill.

There being no objection, the memorandum was ordered to be printed in the R ecord as follows:

Sponsors' Interpretative Memorandum on Issues Other Than 
Wards Cove-Business Necessity/Cumulation/Alternative 
Business Practice
This Interpretive Memorandum is intended to reflect the intent of all of the original cosponsors to S. 
1745 with respect to those issues not addressed by the Interpretive Memorandum introduced into the 
record at S 15276 on October 25, 1991.

SECTION 1: SHORT TITLE

This legislation may be referred to as the 'Civil Rights Act of 1991.’

SECTION 4: PROHIBITION AGAINST ALL RACIAL DISCRIMINATION IN 
THE MAKING AND ENFORCEMENT OF CONTRACTS

Section 4 fills the gap in the broad statutory protection against intentional racial and ethnic

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discrimination covered by section 1981,42 U.S.C. 1981 (Section 1977 of the Revised Statutes) that 
was created by the Supreme Court decision in Patterson  v, M cLean Credit Union, 491 U.S. 164 
(1989). Section 4 reinstates the prohibition of discrimination during the performance of the contract 
and restores protection from racial and ethnic discrimination to the millions of individuals employed 
by firms with fewer than 15 employees. The list set forth in subsection (b) is illustrative only, and 
should be given broad construction to allow a remedy for any act of intentional discrimination 
committed in the making or the performance of a contract. Section 4 also overturns Patterson  in 
contractual relationships other than employment, and nothing in the amended language should be 
construed to limit it to the employment context.

Section 4 also codifies the holding of Runyon  v. McCrary, 427 U.S. 160 (1976), reaffirmed in 
Patterson, that section 1981 prohibits private, as well as governmental, discrimination.

SECTION 5: DAMAGES IN CASES OF INTENTIONAL DISCRIMINATION

1. The Need for Damages
Current civil rights laws permit the recovery of unlimited compensatory and punitive damages in 
cases of intentional race and ethnic discrimination. [See notes regarding Sec. 4 overturning Patterson  
v. M cLean Credit Union with regard to restoring the prohibition against all racial and ethnic 
discrimination in the making and enforcement of contracts.] No similar remedy exists in cases of 
intentional gender, religion, or disability discrimination.

Under 42 U.S.C. 1981, victims of intentional racial and ethnic discrimination are entitled not only to 
equitable relief, but also to compensatory damages. Further, in egregious cases, punitive damages 
may also be awarded. Johnson  v. Railw ay E xpress Agency, Inc., 421 U.S. 454, 460 (1975); see also 
Patterson v. M cLean Credit Union, 491 U.S., 109 S.Ct. 2375 n.4. By contrast, under Title VII and 
the Americans with Disabilities Act (ADA) victims of intentional gender, religious or disability 
discrimination may receive only injunctive relief, reinstatement or hiring, and up to two years 
backpay. Neither Title VII nor the ADA permit awards of compensatory or punitive damages no 
matter how egregious the discrimination is in a particular case. (See section 706(g), 42 U.S.C. sec. 
2000e-5(g)).

S. 1745 creates a new provision, to be codified in section 1981Ain Title 42 ofthe U.S. Code. Section 
1981A authorizes the award of compensatory and punitive damages in cases of intentional 
employment discrimination against persons within the protected categories of Title VII and the 
Americans with Disabilities Act.

In order to assure that a complaining party does not obtain duplicative damage awards against a 
single respondent under both section 1981 and section 1981 A, the provision limits section 1981A 
damage awards to a complaining party who 'cannot recover under section 1977 of the Revised 
Statutes (42 U.S.C. 1981).' The complaining party need not prove that he or she does not have a cause 
of action under section 1981 in order to recover damages in the section 1981A action.

Moreover, this provision does not prevent a person from challenging discrimination which causes 
demonstrably different harms under each ofthe statutes. For example, a woman who suffers both race 
and sex harassment, and is injured in different ways by each, may challenge the race discrimination 
under section 1981 and the sex discrimination under section 1981 A. and if proven, may recover under 
both. The court should, of course, ensure that she does not receive duplicate awards for the same 
harm.

Section 1977A(b)(4) (42 U.S.C. section 1981 A(b)(4)) makes clear that nothing in section 1977A 
should be construed to limit the scope of, or the relief available under, section 1977 ofthe Revised 
Statutes, 42 U.S.C. 1981. The new damages provision thus does not limit either the amount of

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damages available in section 1981 actions, or the circumstances under which a person may bring suit 
under this section. For example, the bill does not affect the holding of the Supreme Court "in Saint 
Francis C ollege v. A l-Khazra/i. 481 U.S. 604 (1987), that section 1981 was intended to protect from 
discrimination 'identifiable classes of persons who are subjected to intentional discrimination solely 
because of their ancestry or ethnic characteristics.1 Indeed, that discrimination is national origin 
discrimination prohibited by Title VII as well.

Claims asserted under this new section are commenced with the timely filing of a charge of 
discrimination with the EEOC and/or state or local fair employment agency. The investigation and 
conciliation functions of the fair employment agencies normally applicable to such charges will 
continue to be applied. Only after the agency has completed its functions and/or released the 
complaining party to pursue independent legal action by issuance of a Notice of Right to Sue will the 
plaintiff be empowered to file a lawsuit in federal district court. In this regard the bill does not alter 
existing law.

In addition to the above-cited restrictions, the following limitations also are placed on the damages 
available to each individual complaining party for each cause of action brought under section 1981 A:

Such damages cannot include backpay, the interest thereon, frontpay, or any other relief authorized 
under Title VII; J

The amount of nonpecuniary damages, future pecuniary damages and punitive damages shall not 
exceed  $50,000 for employers with 100 employees or less, $ 100,000 for employers with more than 
100 employees and fewer than 201 employees, $200,000 for employers with more than 200 and 

^fewer than 501 employees, and $300,000 for employers with more than 500 employees;

While compensatory damages may be awarded against federal, state and local government agencies, 
punitive damages may not; and

Where a discriminatory practice involves the provision of a reasonable accommodation under the 
Americans with Disabilities Act, no compensatory or punitive damages may be awarded where the 
covered entity demonstrates good faith efforts to make the reasonable accommodation.

It is the intention of the sponsors of this legislation to make the perpetrators of intentional 
discrimination liable for the non-wage economic consequences of that discrimination up to the full 
extent of the stated limitations.

[Page: S15484]

2. Jury Awards

The bill clarifies that as to claims for which compensatory or punitive damages are sought, any partv 
may demand a trial by jury. Because compensatory and punitive damages may not be sought with 
regard to claims based on the disparate impact theory under the rules set forth in proposed section 
703(k), a jury trial would not be available for such claims.

Claims which involve a demand for damages (and a consequent right to a jury trial) may be brought 
m the same action as claims brought using the disparate impact theory under the rules set forth in& 
proposed section 703(k). The courts shall continue to exercise their discretion in the handling of such 
hybrid actions as they have in handling the many hybrid actions brought under Title VH/section 1981 
in the past.

Judges currently serve as an adequate check on the discretion of juries to award damages. Consistent 
with the requirements of the Seventh Amendment, they can and do reduce awards which are

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CIVIL  R IG H TS A C T OF 1991 (House of R epresentatives - N ovem ber 07(1991)

— ^  [Page: H9526 ]

[TIME: 1450]

Mr. EDWARDS of California. Mr. Speaker, will the gentleman yield?

Mr. BROOKS. I yield to my distinguished friend, the gentleman from California, Mr. Don E dw ards, 
chairman of the subcommittee.

(Mr. EDWARDS of California asked and was given permission to revise and extend his remarks.)

Mr. EDWARDS of California. Mr. Speaker, I rise in enthusiastic support of this bill.

• Mr. Speaker, S. 1745, the Civil Rights Act of 1991, passed by the Senate on October 30, 1991, 
achieves the same fundamental purposes as H.R. 1 which passed the House on June 5, 1991 
Both bills, for example, restore the allocation of the burden of proof and the concept of 
business necessity as enunciated in Griggs v. Duke P ow er, 401 U.S. 424, 1971, and reject the 
contrary interpretations of the Wards Cove case. Both bills assure that section 1981 covers 
discrimination against racial and ethnic minorities on the job, and establish a damage remedy 
in cases of discrimination on the basis of gender and disability. Both bills limit the 
circumstances under which litigated judgments and consent decrees in title VII cases can be 
subject to collateral attack. And there are many other respects in which the two bills are very 
similar or virtually identical. Accordingly, the great bulk of the legislative history on H.R. 1 
that was established in the course of proceedings in the House Judiciary and Education and 
Labor Committees and the floor debate in the House applies with equal force to S. 1745.

• There are some instances, however, in which the language of S. 1745 and H.R. 1 differ, 
notwithstanding the similarity in purpose of the two bills. Accordingly, I offer this interpretive 
memorandum where questions may arise because of differences in wording between the two 
bills. With these clarifications I join in sponsoring S. 1745 and wholeheartedly urge Members 
of the House of Representatives to support the bill.

Section-by-Section Analysis

SECTION 101 —PROHIBITION AGAINST ALL RACIAL DISCRIMINATION 
THE MAKING AND ENFORCEMENT OF CONTRACTS

IN

Section 101 fills the gap in the broad statutory protection against intentional racial and ethnic 
discrimination covered by section 1981.42 U.S.C. 1981 (Section 1977 of the Revised Statutes) that 
was created by the Supreme Court decision in Patterson v. M cLean Credit Union. 491 U.S. 164 
(1989). Section 101 reinstates the prohibition ot discrimination during the performance of the

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contract and restores protection for racial and ethnic discrimination to the millions of individuals 
employed by firms with fewer than 15 employees. The list set forth in subsection (b) is illustrative 
only, and should be given broad construction to allow a remedy for any act of intentional 
discrimination committed in the making or the performance of a contract. Section 101 also overturns 
Patterson in contractual relationships other than employment, and nothing in the amended language 
should be construed to limit it to the employment context.

Section 101 also codifies the holding of Runyon v. M cCrary, 427 U.S. 160 (1976), reaffirmed in 
Patterson, that section 1981 prohibits private, as well as governmental discrimination.

SECTION 102-DAM AGES

The creation of a damages remedy for intentional discrimination is necessary to conform remedies for 
intentional gender, disability, and certain forms of religious discrimination to those currently 
available to victims of intentional race, national origin and other forms of religious discrimination as 
well as to provide a more effective damages remedy in the public sector. This legislation properly 
reverses the Supreme Court's decision in Patterson  v. M cLean C redit Union, 491 U.S. 164 (1989) to 
assure that the broad prohibition against race and ethnic discrimination included in 42 U.S.C. 1982, 
along with the availability of compensatory and punitive damages, is restored and applies to all 
aspects of the employment relationship. With Section 1981 thus restored, it is simply untenable to 
continue any longer the disparity in the civil rights laws which permits the recovery of compensatory 
and punitive damages in cases of intentional race discrimination but to deny these same remedies to 
victims of other forms of discrimination .

Monetary damages serve the twin purposes of compensation and deterrence. Compensatory damages 
are necessary to make discrimination victims whole for the terrible injury to their careers, to their 
mental, physical, and emotional health, to their self-respect and dignity, and for other consequential 
harms. Compensatory damages also raise the cost of an employer's engaging in intentional 
discrimination, thereby providing
employers with additional incentives to prevent intentional discrimination in the workplace before it 
happens. Punitive damages serve the important purposes of punishing egregious discrimination, 
reinforcing the public policy against discrimination and adding to the deterrent value of a damages 
award. Monetary damages are also necessary to encourage citizens to act as private attorneys general 
to enforce the law.

Section 102 creates a new provision, section 1977A of the revised statutes, to be codified as section 
1981A in Title 42 of the United States Code. Section 1977A authorizes the award of compensatory 
damages in cases of intentional employment discrimination against persons within the protected 
categories of Title VII and the Americans with Disabilities Act.

The provisions of Section 1977 (42 U.S.C. 1981) and Section 1977A work together. Some victims of 
discrimination such as those suffering solely from sex or disability discrimination will have recourse 
under Section 1977A. Others, such as those suffering from racial or national origin discrimination 
have recourse under both Sections 1977 and 1977A. While these plaintiffs may proceed under both 
sections, they, of course, cannot recover double damages for the same harm arising out of the same 
facts and circumstances.

Other plaintiffs who have recourse under both Sections 1977 and 1977A include those who suffer 
from double discrimination on the basis of disability or sex combined with race or national origin. 
These plaintiffs, who may have different independent causes of action under Sections 1977 and 
1977A out of the same or different factual situations, may proceed under both sections and recover 
damages under both sections for the independent causes of action.

For example, a minority woman may have a cause of action for damages for race or national origin 
discrimination which she may bring under both Sections 1977 and 1977A as well as a separate cause

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of action for sex discrimination under Section 1977A. She may also have a cause of action for 
combined race and sex discrimination, see, e.g., Jefferies v. Harris City. Community Action  
Association, 615 F.2d 1025 (5th Cir. 1980) which could be brought under both sections. Similarly, 
plaintiffs establishing both race and disability discrimination can recover damages under both 
provisions.

By limiting awards under Section 1977A to those situations where the complaining party 'cannot 
recover under Section 1977 of the revised statutes (42 U.S.C. 1981)'. Section 1977A simply assures 
that there will be no double recovery for the same harm, i.e., a party cannot recover for the same 
cause of action for race discrimination under both statutes. Moreover, if a party has a potential cause 
of action under Section 1977, but for whatever reason does not bring it, that party "cannot recover 
under Section 1977' within the meaning of this provision. Such party may therefore recover under 
Section 1977A since no double recovery could result. No party is under any obligation to proceed 
under one or the other statute or to waive any cause of 
action under either statute as a condition of proceeding.

In addition, the following points should be raised in connection with this section:

The new damages provision does not limit either the amount of damages available in section 1981 
actions or the circumstances under which a person may bring suit under that section. Particularly, this 
bill affirms the holding of the Supreme Court in Saint Francis College v. Al-Khazraji, 481 U.S. 604 
(1987), see also Shaare Tefila C ongregation v. Cobb, 481 U.S. 615 (1987), that section 1981 was 
intended to protect from discrimination "identifiable classes of persons who are subjected to 
intentional discrimination solely because of their ancestry or ethnic characteristics.' Indeed, that 
discrimination is national origin discrimination which is also prohibited by Title VII.

Damages awarded under section 1977A cannot include remedies already available under Title VII 
including backpay, the interest thereon, front pay, or any other relief authorized under Title VII;

By explicitly referencing section 717 of Title VII, section (a)(1) of section 1977A assures that the 
damages remedy will be available in cases against federal defendants. As is clear from the fact that 
the section addressing the right to jury trials has been drafted without limitation, jury' trials are 
available to the same extent in cases against federal defendants as they are in cases against any other 
defendant.

Section 1977A authorizes damages actions against state and local governmental defendants. By 
reference to sections 703, 704 and 706 of Title VII, the statutory language of section 1977A is 
explicit that compensatory damages are available against state and local governmental defendants 
although section (b)(1) clarifies that punitive damages are not. In so doing it reinforces the clear 
statutory intent that compensatory damages are available against federal, state and local governmental 
defendants to the same extent that they are available against private sector defendants; punitive 
damages are not.

Any party may demand a trial by jury regarding claims for which compensatory and/or punitive 
damages are sought. This jury right is without limitation and thus applies to all claims authorized by- 
section 1977A including those against federal, state, or local governmental defendants.

The sponsors recognize the limited role of the judiciary in reviewing jury awards and intend that only 
this well-established supervisory role be applied to the review of jury awards under section 1977A, 
This legislation in no way suggests or authorizes any new or additional judicial authority in this area.

Section 1977A specifically authorizes the Equal Employment Opportunity Commission and the 
Attorney General, in addition to individual complaining parties, to bring actions for both 
compensatory and punitive damages. This legislation thus intends that the federal governmental 
agencies charged with enforcing Title VII and the Americans With Disabilities Act have authority to

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pursue both compensatory and punitive damages remedies to
assure that the legislative purposes of compensation and deterrence are fully served for persons 
protected under section 1977A.

Punitive damages are available under 1977A to the same extent and under the same standards that 
they are available to plaintiffs under 42 U.S.C. 1981. No higher standard may be imposed.

While the bill extends the remedy of damages to intentional discrimination, this does not mean that 
there will be an automatic damages remedy if an affirmative action plan if found wanting or if a 
court-ordered affirmative action requirement is overturned. The EEOC has issued Affirmative Action 
Guidelines which set forth the standards for permissible affirmative action. 29 C.F.R. Part 1608, 44 
Fed. Reg. 4422 (February 20, 1979). These guidelines invoke 713 of title VII, 42 U.S.C. Sec. 2000e- 
12, which provides immunity from liability under Title VII for respondents who prove that their 
actions were taken in good faith, in reliance on, and in conformity with, written interpretations and 
opinions of the EEOC. 29 C.F.R. 1608.2. These Guidelines also provide immunity from Title VII 
liability for actions taken by a respondent in compliance with a court order. 29 C.F.R. 1608.8. Thus, 
respondents have assurance that they will be free of the risk of damage actions under this bill if their 
affirmative plans meet these standards, or if they are acting under court order.

The sponsors acknowledge the limitations on damages awards in the legislation which apply to the / 
damages available to each individual complaining party for each cause of action brought under /
Section 1981 A. However, they reject any rationale that these limitations serve any function as a I
precedent for tort reform or any other limits on recovery.

[Page: H9527]

SECTIONS 2 AND 3-FINDING S AND PURPOSES

Section 3 states that one of the purposes of the legislation is 'to codify the concepts of 'business 
necessity' and 'job related’ enunciated by the Supreme Court in Griggs v. Duke Pow er Co., 401 U.S. 
424 (1971), and in the other Supreme Court decisions prior to Wards Cove Packing Co. v. Atonio,
490 U.S. 642 (1989).’ Some have suggested, contrary to the plain meaning of this Section and of 
Section 2 ('Congress finds that-* * * the decision of the Supreme Court in Wards Cove Packing Co. 
v. Atonio, 490 U.S. 642 (1989) has weakened the scope and effectiveness of Federal civil rights 
protections'), that the effect of Section 3 is to codify the treatment of business necessity in Wards 
Cove. The argument is that the Wards Cove standard of business necessity was part of the decision in 
Watson v. F ort Worth B ank and  Trust, 487 U.S. 977 (1988) and wras also articulated in a footnote in 
N ew  York City Transit A uthority  v. Beazer, 440 U.S. 568 (1979). This argument is unfounded and 
these two decisions do not undermine in any way the fact that in virtually every disparate impact case 
decided prior to Wards Cove (including 6 out of 6 in the Supreme Court), the Court has applied a job 
performance or job relatedness standard of business necessity.

Watson was decided a year before Wards Cove and all Justices who voted concurred in the holding 
that disparate impact analysis may be applied to cases in which subjective criteria are used to make 
employment decisions. However, as to the evidentiary standards to be applied in disparate impact 
cases and the meaning of business necessity, the Justices were split and there was no majority 
opinion of the Court. A plurality asserted that Griggs would be satisfied if the employer's practice 
was 'related to legitimate business purposes' or served 'the employer's legitimate business goals.’ 
which the plurality acknowledged was a new expression of the business necessity rule.

Three Justices, on the other hand, argued that this was 'simply not enough to legitimize a practice 
that has the effect of excluding a protected class from job opportunities at a significantly 
disproportionate rate,’ and that '[o]ur cases since Griggs make clear that this effect itself runs afoul of 
Title VII unless it is 'necessary to safe and efficient jo b  perform ance.' 101 L.Ed. 2d at 852 (emphasis 
added).

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AFFIDAVIT OF SERVICE

M m t z b  States (Eourt of Appeals
for the Sistrict of (Eolumbta (Etrcutt
--------------------------------------)
MATTHEW F. FOGG, )

Plaintiff-Appellant, )
)

v. ) Appeal No. 00-5138
)

JANET RENO, Attorney General )
of the United States, )

Defendant-Appellee. )
---------------------------------------------------------------------)

I, John C. Kruesi, Esq., being duly sworn according to law and being over the age of 
18, upon my oath depose and say that:

I am retained by, ZUCKERT, SCOUTT & RASENBERGER, Attorneys for Plaintiff-Appellant.

On the 20th Day of November 2000,1 served 
Appellant upon:

W il m a  A. L e w is , U.S.
Attorney
R. Cr a ig  L a w r e n c e  
Assistant U.S. Attorney 
A l e x a n d e r  D. Sh o a ib i 
Assistant U.S. Attorney 
U.S. ATTORNEY’S OFFICE 
C iv il  A ppe l l a t e  
555 4th Street, N.W.
10th Floor
W ashington, DC 20001 
Attorneys for Defendant-Appellee

a true copy o f the within Brief for Plaintiff-

El a in e  R. Jo n es  
T h e o d o r e  M. Sh a w  
N o r m a n  J. C h a c h k in  
Ch a r le s  St eph e n  Ra l st o n  
E lise  C. B o d d ie  
NAACP L e g a l  D efe n se  an d  

Ed u c a t io n  Fu n d , In c .
99 Hudson Street 
Suite 1600
New York, NY 10013 
(212) 965-2200 
Attorneys for Amiens Curiae

via Federal Express.

Unless otherwise noted, 15 copies have been file^ with tĥ e Cou# on the same date by hand 
delivery. \ \

John C. Kruesi, Esq.
November 20, 2000