Fogg v. Reno Brief for Appellee
Public Court Documents
January 4, 2001

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Brief Collection, LDF Court Filings. Fogg v. Reno Brief for Appellee, 2001. 0f59ab15-b29a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/b6efcdcc-1d5b-448a-8c91-902d63021137/fogg-v-reno-brief-for-appellee. Accessed July 13, 2025.
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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES Parties and amici The parties consist of Plaintiff-Appellant Matthew F. Fogg and Defendant-Appellee Janet Reno, U.S. Attorney General. There were no intervenors or amici in the proceedings before the U.S. District Court. The NAACP Legal Defense and Education Fund, Inc., filed a brief as amicus curiae in this Court in support of Appellant. Rulings Under Review The rulings under review are the Honorable Thomas Penfield Jackson's March 30, 1998 Order granting defendant's motion for partial summary judgment on the non-discrimination review of the MSPB decision (JA 40); July 1, 1999 Memorandum and Order granting defendant's motion for a remittitur of the verdict and rejecting the jury's advisory verdict on plaintiff's pre-1991 Civil Rights Act claims (JA 45); and February 25, 2000 Order denying in substantial part plaintiff's motion for equitable relief (JA 52). Related Cases This case was previously before this Court in case numbers 99-5299 (appeal dismissed as premature) and 00-5168 (cross-appeal dismissed on appellee's motion). Appellee is unaware of any related cases. TABLE OF CONTENTS Page STATEMENT OF JURISDICTION............................... x COUNTERSTATEMENT OF THE CASE....................... l A. Procedural History............................ ]_ B. Statement of Facts............................ 4 SUMMARY OF ARGUMENT..................................... ' 13 ARGUMENT............................................... 15 1. THE DISTRICT COURT PROPERLY LIMITED FOGG'S JURY AWARD OF COMPENSATORY DAMAGES TO $300, 000 UNDER THE * CAP" PROVISIONS OF THE 1991 CIVIL RIGHTS ACT............. ic A. The Standard of Review....................... 45 B. The Damages Cap Provisions of the 1991 Civil Rights Act Limits Fogg's Recovery to One Cap for the Entire Action...................... -1 r 1. The Statutory Provision at Issue....... 16 2. The Plain Language of the Statute Applies One Cap to Each Plaintiff in a Lawsuit......... 17 3. The Legislative History Does Not Dictate a Contrary Interpretation of the Statute.. 22 4. With a Per-Lawsuit Cap, a Plaintiff With Truly Distinct Claims Will Not Necessarily Be Barred From Recovery Multiple Caps............. 27 5. An Award at the Level Sought by Fogg in this Case Would be so Extreme as to be Punitive — a Result Precluded by the 1991 Civil Rights Act... 32 II. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN REFUSING TO AWARD FOGG EXPUNGEMENT, REINSTATEMENT, OR FRONT A. The Standard of Review 33 - 11 - B. The District Court Did Not Abuse its Discretion in Denying Expungement, Reinstatement, or Front Pay ............................................. 33 1. The Governing Legal Principles........... 33 2. The District Court's Refusal to Grant Equitable Relief Regarding Fogg's Removal Was Appropriate Notwithstanding the Jury's Verdict....... 34 3. The District Court's Refusal to Award Reinstatement or Front Pay is Supportable on Alternative Grounds....................... 37 III. THE DISTRICT COURT PROPERLY DISMISSED FOGG'S NON DISCRIMINATION, CIVIL SERVICE CLAIMS REGARDING HIS REMOVAL............................................... 39 A. The Standard of Review............................ 39 B. The MSPB Decision................................. 40 C. The MSPB Decision Was Correct.................... 42 IV. THE DISTRICT COURT PROPERLY FOUND AGAINST FOGG REGARDING FOGG'S PRE-NOVEMBER 21, 1991 TITLE VII ALLEGATIONS.. 44 A. The Standard of Review............................ 44 B. 1985 Reprimand and Temporary Reassignment........ 47 C. 1990-92 Annual Performance Evaluations........... 49 D. 1990 Earp Promotion............................... 5]_ E. Pre-1991 Civil Rights Act Hostile Work Environment........................................ 52 CONCLUSION................................................. 55 - iii - TABLE OF AUTHORITIES * CASES Abatecola v . Veterans Administration. 29 M.S.P.R. 601 afftd, 802 F.2d 471 (Fed. Cir. 1986) . .• . Addamax Corp. v. Open Software Foundation, t^r 149 F.R.D. 3 (D. Mass. 1993) Albemarle Paper Co. v. Moody. 422 U.S. 405 (1975) ^ 8 2 0 C!r°lina DpCartmpnf Human Resources.820 F.2d 1384 (4th Cir. 1987) . . . " ' 7--------- Baltimore S.S.— Co_;_ v. Phillips, 274 U.S. 316 (1927) Barbour v. Browner, 181 F.3d 1342 (D.C. Cir. 1999) / • • • • • ^ rnes v - Small, 840 F.2d 972 (D.C. Cir. 1988) gaty v. Willamette Industries. Tnr 172 F .3d 1232 (10th Cir. 1999) Beckwith v . Career Blazers Learning Center 946 F. Supp. 1035 (D.D.C. 1996) ^ rmudez v - IRC Holdings, 138 F.3d 1176 (7th Cir. 1998) Bradley v. Veterans Administration. 900 F.2d 233 (Fed. Cir. 1990) Brown v. Brody, 199 F.3d 446 (D.C. Cir. 1999) Vi Brown v. Felson, 442 U.S. 127 (1979) — own v - Secretary of the Army. 78 F.3d 645 (D C Cir ) cert, denied, 519 U.S. 1040 (1996) ^ ldwe11 v - ServiceMaster Corp , 966 F. Supp. 33 (D.D.C. 1997) Carney v . The American University. 151 F .3d 1090 (D.C. Cir. 1998) Carr v. Reno, 23 F.3d 525 (D.C. Cir. 1994) Authorities upon which appellee chiefly relies are marked with an asterisks. es are PAGE 43 19 33 '51 28 54 39 21 54 54 40 , 48 29 15 54 37 40 IV Carter v. Ball, 33 F.3d 450 (4th Cir. 1994) ............... 46 Caussade v. Brown, 924 F. Supp. 693 (D. Md. 1996), aff'd, 107 F. 3d 865 (4th Cir. 1997) ..................... 48 Chrysler v. Brown, 441 U.S. 281 (1979) ................... ■ . 26 Connecticut National Bank v. Germain, 503 U.S. 249 (1992) . 18 Consumer Product Safety Commission v. GTE Svlvania, Inc., 447 U.S. 102 (1980) ....................................... 17 Devera v. Adams, 874 F. Supp. 17 (D.D.C. 1995) ............. 44 Diamond v. District of Columbia, 792 F.2d 179 (D.C. Cir. 1986) 37 Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981) . 41 Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469 (1992) 20 Evans v . McClain of Georgia, Inc.. 131 F . 3d 957 (11th Cir. 1997) ............................ 46 *Faragher v. City of Boca Raton, 118 S.Ct. 2275 (1998) . . . 53 Fitzgerald v. Secretary, United States Department of the Veterans Affairs, 121 F.3d 203 (5th Cir. 1997) ......................39 Flora v. United States, 357 U.S. 63 (1958) ................. 17 Ford Motor Co. v. Equal Employment Opportunity Commission. 458 U.S. 219 (1982) ....................................... 33 Foster v. Dalton, 71 F.3d 52 (1st Cir. 1995) ............... 51 Gebster v. Laqo Vista Independent School District. 118 S.Ct. 1989 (1998) ..................................... 21 General Electric Co. v. Gilbert, 429 U.S. 125 (1976) . . . . 21 Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) . . . . 53 Hazel v . United States Postmaster General. 7 F . 3d 1 (1st Cir. 1993) .................................. 44 Hodgsdon v. Department of the Air Force, 704 F. Supp. 1035 (D. Colo. 1989) ........................ 42 Hudson v. Reno, 130 F.3d 1193 (6th Cir. 1997) ............. 21 v Hughes Aircraft Co. v. Jacobson, 525 U.S. 432 (1999) 18 Independent Bankers Association of America v. Farm Credit Administration, 164 F.3d 661 (D.C. Cir. 1999) ........ 18,33 Jefferson v. Mivets System Technology, Inc., 986 F. Supp. 6 (D.C.C. 1997) .............................. 38 Kolstad v. American Dental Association, 108 F.3d 1431 (D.C. Cir. 1997), vacated on other grounds, 119 S.Ct. 2118 (1999) . . . 35 Landgraf v. USI Film Products, Inc., 511 U.S. 244 (1994) ....................................... 22 Lane v. Pena, 518 U.S. 187 (1996) .......................... 20 Lindahl v. Office of Personnel Management, 470 U.S. 768 (1985) 39 Mars, Inc, v. Nippon Conlux Kabushiki-Kaisha, 58 F . 3d 616 (Fed. Cir. 1995) .............................. 28 Maulding v. Sullivan, 961 F.2d 694 (8th Cir. 1992), cert. denied, 507 U.S. 910 (1993) ........................ 40 McCottrell v . Egual Employment Opportunity Commission, 726 F. 2d 350 (7th Cir. 1984) .............................. 45 McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995) ..........................'.............. 33 Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986) . . 52 Mills Music, Inc, v. Snyder, 469 U.S. 153 (1985) ...........’ 17 Monterey Coal Co. v. Federal Mine Safety & Health Review Commission, 743 F.2d 589 (7th Cir. 1984) ................... 26 Murphy v. Empire of America, 746 F.2d 931 (2d Cir. 1984) . . 26 Myrick v. Runyon, 898 F. Supp. 827 (M.D. Ala. 1995) . . . . 52 Newhouse v. McCormick & Co., Inc., 110 F . 3d 635 (8th Cir. 1997) .............................. 37 Nolan v. Boeing Co., 919 F.2d 1058 (5th Cir. 1990), cert. denied, 499 U.S. 962 (1991).......................... 19 Phillips v. General Services Administration, 878 F. 2d 370 (Fed. Cir. 1989) ............................ 42 vi Pryon v. United States, 212 Ct.Cl. 578, cert. denied, 434 U.S. 824 (1977) 42 Rau v. Apple-Rio Management Co.. 85 F.Supp. 2.d 1344, (N.D. Ga. 1 9 9 9 ) ............................................. 21 Reynolds v. CSX Transportation, Inc.. 115 F.2d 860 (11th Cir. 1997) 21 Risner v. Department of Transportation. 677 F.2d 36 (8th Cir. 1982) 42 Ruckelshaus v. Sierra Club. 463 U.S. 680 (1983) 20 Rvan v. Department of Justice, 950 F.2d 458 (7th Cir. 1991) 44 Settle v. Baltimore Countv, 34 F. Supp. 2d 969 (D. Md. 1999) 53 *Smith v. Chicago School Reform Board of Trustees, 165 F.3d 1142 (7th Cir. 1999) ...................... 21,29, 30 Smith v. United States Air Force, 566 F.2d 957 (5th Cir.), cert. denied, 439 U.S. 819 (1978) ............. 42 Storey v. Rubin, 976 F. Supp. 1478 (N.D. Ga. 1997), af f ’ d, 144 F. 3d 56 (11th Cir. 1998) ..................... 45 Sutcliffe Storage & Warehouse Co. v. United States. 162 F . 2d 849 (1st Cir. 1947) .............................. 28 Taken v. Oklahoma Corp. Commission. 125 F.3d 1366 (10th Cir. 1997) ........................................... ; 51 Tidwell v. Meyer's Bakeries, Inc.. 93 F.3d 490 (8th Cir. 1996) ........................................... ... United States v. Ron P.ur Enterprises, Inc.. 489 U.S. 235 (1989) 18 United States v. Western Electric Co., 46 F.3d 1198 (D.C. Cir. 1995) 27 Watson v. Department of Justice, 64 F.3d 1524 (Fed. Cir. 1995) ........................................... ... *Webb v. District of Columbia. 146 F.3d 964 (D.C. Cir. 1998) ......................................... 33,37 - vii - Wiggins v. National Gallery of Art, 980 F.2d 1436 (Fed. Cir. 1992) ........................................... ... Williams v. First Government Mortgage and Investors Coro.. 974 F. Supp. 17 (D.D.C. 1997), 225 F. 3d 738 (D.C. Cir. 2 0 0 0 ) ............................ . 35 Williams v. Pharmacia, Inc,. 137 F.3d 944 (7th Cir. 1998), aff' g 956 F. Supp. 1457 (N.D. Ind. 1994) ............... 38 Williams v. Rice, 983 F.2d 177 (10th Cir. 1993) ........... 40 Williams v. Tavlor, 120 S.Ct. 1479 (2000) ............. 18 Witt v. Roadway Express, 136 F.3d 1424 (10th Cir. 1998), cert. denied, 525 U.S. 881 (1998) ........................54 FEDERAL STATUTES 28 U.S.C. § 1 2 9 1 ............................................... .. 31 U.S.C. § 1349 ............................................. 47 42 U.S.C. § 1981a ........................................... ... 42 U.S.C. § 1981a (b) ( 1 ) .....................................14,16 42 U.S.C. § 1981a (b) ......................................... ... 42 U.S.C. § 198la (b (3) ....................................... 21 42 U.S.C. §§ 2000e, et sea. .............................. 1,16 42 U.S.C. 2OOOe 5 (f) (3) ....................................... .. 42 U.S.C. 2000e 5 (f) (1) ........................................ 42 U.S.C. 2000e-5(g)........................................... ... 42 U.S.C. § 2000e-16(c) ...................................19,45 5 U.S.C. § 7703 (c) ........................................... ... - viii - GLOSSARY 1991 Act Civil Rights Act of 1991, Pub. L. No. 102-166 (1991) App. Add. Appellant's Addendum App. Br. Appellant's Brief DEA Drug Enforcement Administration DUSM Deputy U.S. Marshal EEOC Equal Employment Opportunity Commission EEO Complaint Administrative Complaint of Discrimination Fogg Appellant, Matthew F. Fogg Government Appellee, Janet Reno, U.S. Attorney General J . A . Joint Appendix MATF Metropolitan Area Task Force MSPB Merit Systems Protection Board Supp. App. Appellee's Supplemental Appendix Title VII Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et sea. USMS United States Marshals Service IX UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Case No. 00-5138 MATTHEW F. FOGG, Appellant, v . JANET RENO, Attorney General, United States Department of Justice, Appellee. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BRIEF FOR APPELLEE STATEMENT OF JURISDICTION Appellant Matthew F. Fogg alleged District Court jurisdiction under 5 U.S.C. § 7703(b)(2) and 42 U.S.C. § 20C"e- 5(f)(3) based on his assertions of claims under Title VII oi the Civil Rights Act of 1964, as amended, 42 U.S.C. § § 2000e et sea. This Court has jurisdiction under 28 U.S.C. § 1291. COUNTERSTATEMENT OF THE CASE A. Procedural History Appellant, Matthew Fogg, a former Deputy U.S. Marshal in Washington, D.C., filed a civil action, claiming that Appellee, U.S. Attorney General Janet Reno, through officials of the United States Marshals Service ("USMS"), discriminated against him during his employment on account of his race, retaliated against him on account of his protected activity, and subjected him to a racially hostile work environment. Fogg also sought review of the MSPB decision which sustained his removal from the USMS on the ground of insubordination. JA 23.: On March 30, 1998, the District Court granted the Government s motion for partial summary judgment regarding Fogg's request for statutory, non-discrimination review of the MSPB decision, finding that the decision regarding Fogg's removal was not arbitrary or capricious, unsupported by substantial evidence, or otherwise contrary to civil service law. JA 40. Fogg is appealing the District Court's ruling. In addition, Fogg's substantive Title VII claims involved employment matters occurring both before and after the effective date of the 1991 Civil Rights Act. The District Court elected not to bifurcate trial in this matter and instead submitted all of Fogg's claims, both pre- and post-1991 Civil Rights Act, to the jury, with the jury acting in an advisory capacity regarding Fogg's pre-1991 Civil Rights Act claims. JA 12. On April 28, 1998, the jury returned a verdict in the form of answers to specific interrogatories on a special verdict form. References to the Joint Appendix will be cited as " JA ___•" References to the Government's Supplemental Appendix contained herein will be cited as "Supp. App., at -2- The jury found against the Government on all but one of the specific interrogatories of alleged discriminatory and/or retaliatory treatment presented to the jury.2 The jury awarded Fogg $4,000,000 in compensatory damages. JA 819-824. On July 1, 1999, the District Court ruled on the Government's renewed motion for judgment as a matter of law or, in the alternative, for a new trial or remittitur of the verdict. The District Court rejected the jury's advisory verdict against the Government with respect to Fogg's pre-1991 Civil Rights Act claims, finding that Fogg "failed to prove that he was personally subjected to race discrimination or retaliation in any of the particular incidents alleged." JA 45. Fogg is appealing this ruling. The District Court, however, refused to overturn the jury's verdict with respect to Fogg's post-1991 Civil Rights Act allegations. The Court opined that the USMS offered legitimate, non-discriminatory reasons for the actions complained, and Fogg failed to present any direct evidence that any of the USMS' reasons were pretextual. Nevertheless, the District Court found that because Fogg presented evidence that there was racial disharmony in the USMS, the jury's specific interrogatories 2 The jury, regarding a pre-1991 Civil Rights Act claim, found that Fogg failed to prove that a 1986 non-promotion claim was the result of discrimination and/or retaliation. JA 822. Fogg is not appealing the District Court's finding of no discrimination regarding this claim. -3- verdict on post-1991 Civil Rights Act issues would not be overturned, although the District Court noted its disagreement with those factual findings. JA 50. The District Court remitted the $4,000,000 compensatory damages award to $300,000 pursuant to 42 U.S.C. § 1981a(b)(3)(D). JA 48-49. Fogg is appealing the District Court's decision to reduce his compensatory damages award to the statutory cap. On September 1, 1999, Fogg filed a motion for equitable relief, seeking expungement of his removal, reinstatement, and substantial back pay and front pay. On February 25, 2000, the District Court denied Fogg's request for expungement, reinstatement, and front pay. The District Court, however, awarded Fogg back pay starting at a GS-14, Step 1 level from July 28, 1992,3 until September 29, 1995 - the date of Fogg's removal from the USMS for insubordination. JA 52-53. Fogg is challenging the District Court's refusal to award expungement, reinstatement or front pay. B . Statement of Facts Appellant, Matthew Fogg, an African-American, began his employment with the USMS in 1978, as a GS-5 Deputy U.S. Marshal ("DUSM") in the U.S. Marshal's Office for the District of Columbia. JA 850. As of September 17, 1985, Fogg was employed 3The date Fogg first became eligible for promotion to Grade 14 . -4- as a GS-11 DUSM and assigned to U.S. District Court Operations.4 Although Fogg was assigned to U.S. District Court operations, he had been temporarily detailed to assist a special fugitive task force operated by USMS Headquarters. JA 212. While Fogg was assigned to the USMS Headquarters task force, he used a Government-owned vehicle assigned to U.S. District Court Operations to visit the dentist while on sick leave. JA 212-231, 250-251, 538-540. When Senior Chief Deputy U.S. Marshal Ronald Hein (Caucasian) found out about Fogg's misuse of a Government vehicle, he discussed the matter with his supervisor, U.S. Marshal Herbert Rutherford (African-American). Rutherford directed Hein to "chew Fogg out" and reassign him within the U.S. Marshal's Office to Superior Court Operations for a short time. JA 256-257, 280-282, 406-411. Consequently, on September 17, 1985, in a meeting with Fogg in the presence of Fogg's supervisors, Hein verbally and harshly admonished Fogg about his misuse of the Government vehicle and reassigned him to Superior Court Operations. Fogg's reassignment to Superior Court Operations did not result in a loss of grade or pay and the reassignment lasted only three months. Fogg was thereafter returned to U.S. District Court Operations. JA 135- 4At that time, the U.S. Marshal's Office for the District of Columbia included both the Superior Court office and the U.S. District Court office. JA 279. The offices were later separated, each headed by a Presidentially-appointed U.S. Marshal. JA 309. -5- 141, 299-301, 424, 483-489, 492-494, 502-504, 533. Shortly after being verbally admonished and reassigned within the U.S. Marshal's Office, Fogg filed an administrative complaint of discrimination (*EEO Complaint"). JA 147. Matters between Fogg and USMS management remained relatively quiet during the 1986-1992 period. During that time, Fogg had minimal contact with Hein and did not file any new administrative EEO Complaints. JA 505-508. In fact, on September 11, 1988, Fogg was promoted to the GS-12 level and received other task force assignments. JA 850. In 1989, while Fogg was assigned as a GS-12 Deputy U.S. Marshal in the U.S. District Court for the District of Columbia, he was assigned to participate in the fugitive apprehension unit of a Drug Enforcement Administration ("DEA") sponsored task force effort entitled the Metropolitan Area Task Force ("MATF'). USMS Headquarters Chief Inspector Jose Antonio Perez (Hispanic) was also assigned as a Grade 14 supervisor to the fugitive apprehension unit of the task force. JA 148-150, 627-629. In 1990, Perez was reassigned from the MATF to return to USMS Headquarters. When Perez left the MATF, the USMS did not replace him in the task force with any other personnel from the USMS. Fogg remained assigned to the task force and continued to coordinate the efforts of the remaining members of the fugitive apprehension unit. JA 632-633. In 1992, Fogg filed a second administrative EEO Complaint -6- against the USMS, alleging race discrimination and retaliation for filing his 1985 EEO Complaint, which was still pending administrative adjudication at that time. Fogg's 1992 EEO Complaint raised several allegations; but principally that in May 1990, then USMS Director K. Michael Moore (Caucasian)'did not select him for a promotion to a Grade 13 position in USMS Headquarters. Moore had selected a Caucasian GS-12 DUSM who was ranked significantly lower on the merit promotion list than Fogg. In addition, Fogg complained that he was not provided annual performance evaluations from April 1, 1990 through March 31, 1992. JA 26. In the meantime, in July 1991, in recognition for his work on the MATF, Director Moore selected Fogg for a temporary promotion not to exceed three years to the Grade 13 level. In December 1992, however, after receiving complaints from Fogg's peers about Fogg's performance on the task force, Perez reassigned Fogg from the task force to USMS Headquarters. Three months later, on or about March 3, 1993, Fogg became ill and left work, claiming that he could no longer work due to stress regarding his employment and EEO claims. At that time, the USMS placed Fogg on approved leave status. JA 183-184, 634-643, 647- 650, 850. In the fall of 1994, recently appointed USMS Deputy Director George R. Havens (Caucasian) was informed that Fogg had been out of work for some time, that he had been receiving some form of -7- medical treatment, and that medical records indicated that he was fit to return to duty, but for some reason he had not returned to duty. At that time, Havens' only concern was to determine whether Fogg was fit for duty, and if so, to return him to duty. Havens was specifically advised that there were medical reports tnat opined that Fogg was physically and psychologically fit for duty.5 Based on the information provided to Havens, he concluded that Fogg was fit for duty, and therefore should report to work. JA 888-890. In arriving at his decision to return Fogg to duty, Havens suggested that Fogg return to work for U.S. Marshal Rutherford in the District of Columbia. Havens was told, however, that Fogg had stated that he could not go back to work in the District of Columbia because he believed that he was allegedly subject to racial discrimination in 1985 by a supervisor in that district. JA 890-891. Havens then considered assigning Fogg to the U.S. Marshal's Office in the Superior Court of the District of Columbia or the 5 Joseph Tarantolo, M.D., a psychiatrist retained by the USMS to perform a fitness-for-duty examination on Fogg in December 1993, advised the USMS in a report dated December 18, 1993, that "Mr. Fogg strikes me as a conscientious, intelligent man who should be able to function fairly well in the job of U.S. Marshal. . . . He needs an intensive, insight oriented analysis which will take 2-3 years. This therapy would best be carried out while he is working. It is not a prerequisite to his return to work. . . . No restrictions or limitations need be placed on him when he returns to duty including the use of firearms. Finding an assignment uncontaminated by the current litigation would be optimal." JA 857-861. -8- Eastern District of Virginia where the U.S. Marshals there were also African-American. Havens was informed that Fogg claimed he could not go to work in either location. Finally, Havens considered reassigning Fogg to any one of the USMS' 94 districts and 180 field offices of Fogg's choice. Havens was informed that Fogg would not return to any position in the USMS until ''institutional racism" was eliminated. JA 891-894. Consequently, in light of the medical clearance, on November 14, 1994, Havens directed Fogg to report for duty under the supervision of U.S. Marshal Rutherford. JA 864. Fogg reported for duty on November 23, 1994, immediately claimed he was not feeling well, and was sent home. When Havens heard of what transpired when Fogg reported to work, he decided that it was appropriate to send Fogg to another fitness-for-duty examination to see whether he was fit for work. By letter dated December 22, 1994, the USMS directed Fogg to appear for a fitness-for-duty examination on January 4, 1995, -at 8:30 a.m. JA 867. The letter informed him that failure to keep the scheduled appointment would be considered a failure to comply with a direct order. Fogg received the letter on December 28, 1994. He read it and understood that he was ordered to appear for a physical exam at 8:30 a.m. on January 4, 1995. Supp. App., at 16-17. After receiving the order to appear at the fitness-for-duty examination, Fogg filed a motion for a temporary restraining order in the District Court here. JA 4. -9- On the afternoon of January 3, 1995, while in the courthouse waiting for the motion to be heard later that day, Fogg told Joe Lazar, an Associate General Counsel of the USMS, that he was not going to attend the fitness-for-duty exam on January 4, 1995. At that time, Fogg told Lazar that he was under his personal physician's care and was taking medication that would skew the test results. In addition, as an overriding concern, Fogg told Lazar that the fitness-for-duty order was unfair and further evidence of agency discrimination. Lazar told Fogg that Fogg was under an order to report for the examination and that he would be subject to discipline if he did not report. The District Court hearing on Fogg's motion was rescheduled for the next day, January 4, 1995, at 2:00 p.m. Consequently, Fogg thereafter told Lazar that, in addition to his reasons for not complying with the order, he now had to prepare for the upcoming motion hearing. JA 728-730, 896-897. Fogg did not appear for the medical examination on the morning of January 4, 1995. Later that day, prior to the commencement of the motion hearing, Lazar handed a second order to Fogg, which set forth a new examination date of January 17, 1995. JA 733, 899-900. This order stated: Be advised that your failure to participate in your fitness- for-duty examination on January 4, 1995, is considered a failure to follow instructions. Tiny further failure to participate in fitness-for-duty examinations will also be considered a failure to follow instructions. This type of behavior will result in formal disciplinary action up to and including removal. -10- JA 870. At that time, Fogg told Lazar that the order was unfair and that he was not going to attend. Fogg complained that he had not been consulted about the date and that he "might" be busy on the scheduled date. Lazar told Fogg that the matter was in Fogg's control, but if he did not appear for the examination he could be subject to discipline. JA 733, 900-901. The following morning, January 5, 1995, the District Court denied Fogg's motion for a temporary restraining order. JA 21, 734. Fogg did not appear for the fitness-for-duty exam on January 17, 1995. JA 734. The matter involving Fogg's failure to attend the fitness- for-duty examinations was referred to the USMS Disciplinary Committee for review of possible disciplinary action. The three- member Committee, chaired at that time by Willie Greason (African-American), a Chief Deputy U. S. Marshal in Kansas City, Missouri, recommended that Fogg be removed from his employment in the USMS. According to Greason, a lesser penalty was not considered because in a law enforcement agency a person has an obligation to follow orders. JA 739-745. Supp. App., at 1-5. The Committee's recommendation was forwarded to Eugene Coon (Caucasian), USMS Acting Associate Director for Operations, who was the deciding official in USMS disciplinary actions at that time. When Coon reviewed the matter, he advised Fogg, through Fogg's attorney, that he would give Fogg one more chance to -11- attend a fitness-for-duty examination.6 Fogg's attorney, however, informed Coon that he had advised Fogg not to take an examination at that time. JA 873. Supp. App., at 6. After considering the matter, Coon decided to sustain Fogg's proposed removal. Coon based his decision on his conclusion that it was the USMS' prerogative to order Fogg to appear for a fitness-for-duty examination and that the USMS clearly provided Fogg direction and an order to do so. Fogg had been told clearly on two occasions that if he failed to appear for the examination disciplinary action could be taken against him, but he failed to meet his obligation on two occasions. Coon did not believe that the USMS could send a message to its personnel that they could dismiss or not follow orders. Supp. App., at 6-15. Effective September 29, 1995, the USMS removed Fogg from his position as a Deputy U.S. Marshal. The ground for Fogg's removal was insubordination/failure to report for a fitness-for-duty examination. JA 875. Fogg appealed his removal to the MSPB .on "mixed" grounds, i, e ., he alleged that the termination was reprisal for his protected EEO activities and was otherwise unlawful under the laws and regulations governing federal 6 The reason Coon offered Fogg another chance for a fitness- for-duty examination is that although he believed that there were sufficient grounds to sustain Fogg's removal, Coon was willing to give Fogg the benefit of the doubt as to whether the first (but not the second) failure to appear was willful, so he decided to give Fogg one more opportunity to attend a fitness-for-duty examination. Supp. App., at 8, 13-14. -12- employees. After conducting an evidentiary hearing, on May 31, 1996, the MSPB issued a decision affirming Fogg's removal. JA 907. SUMMARY OF ARGUMENT 1. The District Court's decision to cap Fogg's award of compensatory damages at $300,000 is compelled by the plain language of the 1991 Civil Rights Act, 42 U.S.C. § 1981a. Section 1981a(a)(1) provides that "[i]n 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 ...." Subsection (b) of section 1981a provides that the sum of compensatory and punitive damages "shall not exceed, for each complaining party" $50,000; $100,000; $200,000; or $300,000, depending upon the size of the employer. The plain language of this provision thus imposes a cap on compensatory damages "in an action." By common language, context, and as a matter of definition in the Federal Rules of Civil Procedure, an "action" means a lawsuit, not a "claim." Thus, the language of the statute necessarily limits an award of compensatory damages in a lawsuit, regardless of the number of claims asserted in that lawsuit. The plain language should be the end of the matter. Even if, notwithstanding the plain language of the statute, it is appropriate to look to the legislative history for guidance, the vague and conflicting pieces of the legislative -13- history relied on by Fogg and amicus do not indicate a contrary interpretation. Indeed, the suggested interpretation of the 1991 Civil Rights Act (allowing separate caps for each "claim") would create a nightmare of complexity and dramatically increase costs in typical Title VII cases over a peripheral issue, as plaintiffs and defendants would have every incentive to expend enormous resources in litigating over whether there are (and the 'number of) distinct claims, as opposed to the underlying merits. Finally, any award of multiple caps in this case would be excessive and punitive, a result not only contrary to Congress' stated desire to bar such excessive claims, but precluded by the Act s bar on punitive damage awards against the Government. See 42 U.S.C. § 1981a (b) (1) . 2. The District Court correctly refused to order expungement, reinstatement, or front pay as a remedy for the post-November 21, 1991 violations found by the jury. The District Court's affirmance of the MSPB decision upholding Fogg's termination on civil service grounds, coupled with the District Court's own findings regarding Fogg's pre-November 21, 1991 claims, fully support the District Court's conclusion that expungement, reinstatement, or front pay would be inappropriate. Alternatively, the substantial equitable relief sought by Fogg was not appropriate due to Fogg's own actions. In addition, reinstatement or front pay is inappropriate relief because Fogg is admittedly unwilling and medically unable to return to his -14- prior work. Thus, the District Court properly exercised its discretion in refusing to award further equitable relief. 3. The decision of the MSPB upholding Fogg's removal was not arbitrary, capricious, without substantial evidence, or otherwise not in accordance with law. The MSPB record adequately demonstrated that Fogg willfully disobeyed his agency's lawful orders to appear for a fitness for duty examination, and the penalty of removal was within the bounds of reasonableness for a law enforcement officer who was insubordinate. 4. The findings of the District Court regarding Fogg's pre- November 21, 1991 claims were not clearly erroneous. On the contrary, the trial evidence firmly established that Fogg failed to prove his claims that he was subjected to discrimination or a racially hostile work environment when he was verbally admonished by a supervisor and reassigned within the office in 1985, not promoted in 1990, and failed to receive two annual performance ratings while assigned to a task force. ARGUMENT IV. THE DISTRICT COURT PROPERLY LIMITED FOGG'S JURY AWARD OF COMPENSATORY DAMAGES TO $300,000 UNDER THE "CAP" PROVISIONS OF THE 1991 CIVIL RIGHTS ACT A. The Standard of Review This Court's review of the District Court's ruling regarding the compensatory damages cap provisions of the 1991 Civil Rights Act is a question of statutory construction and is subject to de novo review. Brown v. Secretary of the Army. 78 F.3d 645, 648 -15- (D.C. Cir.), cert. denied, 519 U.S. 1040 (1996). B. The Damages Cap Provisions of the 1991 Civil Rights Act Limits Fogg's Recovery to One Cap for the Entire Action 1• The Statutory Provision at Issue In section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a (b), Congress for the first time made compensatory and punitive damages available to plaintiffs who establish that they have been victims of intentional discrimination prohibited by Title VII, 42 U.S.C. § 2000e, et sea. Punitive damages, however, may not be awarded against the federal government (or other governmental entities). See 42 U.S.C. § 1981a(b)(l). 42 U.S.C. § 1981a(a) (1) states, in pertinent part: In an action brought by a complaining party under section 706 or 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5) against a respondent who engaged in unlawful intentional discrimination . . . 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. The damages awards are subject to dollar limits that vary depending on the size of the defendant-employer, as outlined in subsection (b). 42 U.S.C. § 1981a(b)(3) further states: 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 nonpecuniary losses, and the amount of punitive damages awarded under this section, shall not exceed, for each complaining party . . . (D) in the case of a respondent who has more than 500 employees . . . $300,000. -16- Fogg and amicus argue that the cap provisions of the 1991 Civil Rights Act apply to each "claim" rather than to the entire lawsuit. It is undisputed that the District Court reduced Fogg's jury award to $300,000 on the ground that the cap applied to the entire lawsuit, not merely to each claim. Assigning error to this ruling, Fogg appears to contend that he is entitled to nine "caps" or $2,700,000 under the 1991 Civil Rights Act, asserting that these caps are appropriate because the jury verdict was delivered on numerous separate and distinct Title VII violations and damages were awarded separately. The issue thus presented for review is whether the 1991 Civil Rights Act cap provision acts as a limit on a Fogg's total recovery for compensatory damages in a single lawsuit or, as Fogg and amicus maintain, is merely a limit on compensatory damages that a jury may award for each claim in a lawsuit. 2. The Plain Language of the Statute Applies One Cap to Each Plaintiff in a Lawsuit____________________ Statutory construction begins, of course, with the "literal meaning of words employed." Flora v. United States. 357 U.S. 63, 65 (1958). See also Consumer Prod. Safety Comm'n v, GTE Svlvania. Inc•' 447 U.S. 102 (1980). In this regard, "[i]n construing a federal statute it is appropriate to assume that the ordinary meaning of the language that Congress employed accurately expresses the legislative purpose." Mills Music, Inc, v. Snvder. 469 U.S. 153, 164 (1985) (quotation and footnote omitted). Thus, -17- if the words of the statute are unambiguous, the judicial inquiry is at an end, and the plain meaning of the text must be enforced. Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999); United States v. Ron Pair Enterprises, Inc.. 489 U.S. 235, 241 (1989). See also Independent Bankers Ass'n of America v. Farm Credit Administration, 164 F.3d 661, 668 (D.C. Cir. 1999) (ambiguous snippets of legislative history are insufficient to undermine clear language of statute). As the Supreme Court has stated, "'[w]e have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.'" Connecticut Nat'1 Bank v. Germain, 503 U.S. 249, 253 (1992). See also Williams v. Taylor, 120 S.Ct. 1479, 1488 (2000) (noting that a word in a statute "must be given its 'ordinary or natural' meaning"). These principles dictate affirmance of the District Court's decision. Under the statute, the cap on compensatory damages applies to each complaining party in an "action." Section 1981a (a) (1) provides that "[i]n an action brought by a complaining party under [Title VII]... the complaining party may recover compensatory and punitive damages as allowed in subsection (b) of this section . ..." (Emphasis supplied). Subsection (b) provides that the sum of compensatory and punitive damages "shall not exceed, for each complaining party" $50,000; $100,000; $200,000; or $300,000, depending upon the size of the employer. -18- This language could scarcely be clearer. A complaining party may not recover more than the applicable cap "in an action" brought under Title VII. An "action" brought under Title VII is simply a "civil action." 42 U.S.C. § 2000e-5(f) (1) ("a civil action may be brought against the respondent named in 'the charge"); 42 U.S.C. § 2000e-16 (c) (an aggrieved federal employee "may file a civil action as provided in section 2000e-5 of this title") . A "civil action" or an "action" is simply "civil judicial proceeding." Black's Law Dictionary, at 28 (7th ed. 1999). Webster's defines "action" as a "legal proceeding" or "suit." Webster's Third New International Dictionary, at 21 (1967) . The Federal Rules of Civil Procedure similarly use the term "action" or "civil action" to describe claims for relief alleged in a single lawsuit. Rule 2 states that "[t]here shall be one form of action to be known as 'civil action.'" See Nolan v. Boeing Co., 919 F.2d 1058, 1066 (5th Cir. 1990), cert, denied.- 499 U.S. 962 (1991)(action is defined as the "entirety" of a civil proceeding). Rule 3 provides that "[a] civil action is commenced by filing a complaint with the court." See also Addamax Corp._v. Open Software Foundation, Inc., 149 F.R.D. 3, 5 (D. Mass. 1993)(an "action" within the context of Rule 41(a) of the Federal Rules of Civil Procedure is not defined as an individual cause of action, but rather as the entire case) Moreover, by stating that the sum of compensatory damages shall ' -19- not exceed, "for each complaining party," the prescribed amounts, subsection (b) of Section 1981a reinforces the conclusion that a single plaintiff in a single lawsuit is entitled to a single award. In short, the language of the cap provisions is quite clear: a complaining party's total compensatory damages are capped for the entire "civil action." That should be the end of the inquiry. See Estate of Cowart v. Nicklos Drilling Co.. 505 U.S. 469, 475 (1992)("when a statute speaks with clarity to an issue, judicial inquiry into the statute's meaning, in all but the most extraordinary circumstance, is finished").7 Applying this clear language, the courts have thus far uniformly rejected contentions that the cap applies to each claim. Consequently, each court addressing this issue has uniformly held that the $300,000 cap applies to the entire Title VII complaint, not to each claim within the complaint. See, ’Moreover, even assuming arguendo that the statutory cap language is ambiguous, any ambiguity should oe resolved in faVor of a narrow construction because Section 1 la(b) (3) applies to the federal government as well as to priva parties. The cap on compensatory damages, therefore, is a limi_tion or condition on the waiver of the government's sovereign i.unity and, as such, must be strictly construed. See, e.g.. Lan Pena. 518 U.S. 187, 192 (1996)("a waiver of the Governmen = sovereign immunity will be strictly construed, in terms of sc- oe, in favor of the sovereign"). Thus, in Ruckelshaus v. Sier~a Club. 463 U.S. 680 (1983), the Supreme Court, in an analogous context, rejected a broad construction of a fee provision in the Clean Air Act because the statute "affects fee awards against the United States, as well as against private individuals." (463 U.S. at 685). In Ruckelshaus, a narrow construction of monetary liability was required because "[wjaivers of immunity must be construed strictly in favor of the sovereign." Id. The same principle applies here. -20- g-=..q•/ Baty v. Willamette Industries. Tnr... 172 F.3d 1232, 1245-46 (10th Cir. 1999); Smith v. Chicago School Reform Board of Trustees, 165 F.3d 1142, 1150 (7th Cir. 1999); Hudson v. Rp h o . 130 F .3d 1193, 1199-1201 (6th Cir. 1997); cert, denied. 119'S.Ct. 64 (1998); Rau v. Apple-Rio Management Co.. 85 F. Supp.2d 1344, 1346 (N.D. Ga. 1999)(collecting cases). No court has held otherwise. Even the Supreme Court, while not directly deciding this issue, has indicated that the damages cap in 42 U.S.C. § 1981a(b)(3) applies per lawsuit, not claim. According to Justice O'Connor: "It was not until 1991 that Congress made damages available under Title VII, and even then, Congress carefully limited the amount recoverable in any individual case, calibrating the maximum recovery to the size of the employer." Gebster v._Lapp Vista Independent School District. 118 S.Ct. 1989, 1997 (1998)(emphasis added). Consequently, the overwhelming body of jurisprudence supports the applicability of the $300,000 damages cap on a per lawsuit basis. In sum, Fogg's construction of the cap provisions is not only contrary to the statutory language, it is also without support in the case law.0 Fogg and amicus both rely on a 1996 amicus brief filed in the Eleventh Circuit by the Equal Employment Opportunity Commission ("EEOC") in Reynolds v.- CSX Transportation, Inc.. 115 F.2d 860 (11th Cir. 1997). For all the reasons set forth above, the EEOC position articulated in Reynolds is contrary to the plain meaning of the statute, has not been adopted by any court, and thus, should not be followed by this Court. See, e.a.. General Elec. Co. v. Gilbert, 429 U.S. 125, 144-45 (1976)! It is (continued...) -21- 3. The Legislative History Does Not Dictate a Contrary Interpretation of the Statute The plain language of the statute should be the end of the matter. Nevertheless, the legislative history of section 1981a further supports application of the $300,000 damages cap. Prior to the enactment of the 1991 Civil Rights Act, a prevailing Title VII plaintiff was not entitled to any compensatory or punitive damages. See Landqraf v. USI Film Products, Inc.. 511 U.S. 244, 253-54 (1994). Although the 1991 Civil Rights Act now permits such awards to plaintiffs who establish that they have been the victims of intentional discrimination, the Act does not guarantee that plaintiffs will be compensated for the full extent of their injuries. The monetary cap on damages was a key component of the compromise needed for the passage of the Act. See 137 Cong. Rec. S15472, S15486 (daily ed. Oct. 30, 1991) (statements of Senators Dole and Kohl). Thus, unlike other parts of Title VII, Section 1981a was not intended to provide make-whole relief. The legislative history of the damages provision is limited. There was no conference report, and there is no report addressing whether the damages caps were intended to apply per lawsuit or per claim. The legislative history that does exist reveals that '(...continued) notable that the Reynolds court did not even address the cap issue. Moreover, the EEOC does not appear to have taken a formal position on this issue since 1996. The position articulated in this brief is the position of the United States pursuant to 28 U.S.C. § 516. -22- the damage cap provision was enacted to address Congress' concern that American businesses, particularly smaller ones, might not be able to withstand a new form of unlimited damages. During the floor debates, several members of Congress expressed the fear that unlimited damages might subject employers, especially smaller ones, to unfairly high settlement demands. See, e .g .. 137 Cong. Rec. S15478-79 (daily ed. Oct. 30, 1991) (comments of Senator Bumpers); 137 Cong. Rec. S15486 (daily ed. Oct. 30, 1991)(comments of Senator Kohl). The damage caps were a compromise that balanced these concerns with Congress's overall goals of better deterring intentional discrimination in the workplace and making reasonable remedies available to victims of such discrimination. Id. Congress chose the tiered approach, with varying damage caps calibrated to the size of the defendant-employer, rather than a single damage cap, because employers with fewer employees generally would be less able to withstand a greater exposure .to liability. See 137 Cong. Rec. S15479 (daily ed. Oct. 30, 1991) (comments of Senator Bumpers). Thus, for example, the 1990 Civil Rights Act provided for unlimited compensatory damages and a cap on punitive damages of $150,000 or the sum of compensatory damages and back-pay relief, whichever is greater. This legislation was passed by Congress, but vetoed by President Bush. The bill submitted by the Bush Administration after the veto capped compensatory damages at $150,000. The section-by-section -23- [Section 8 of the bill] allows a court to make a monetary award "up to but not exceeding a total of $150,000." This language 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. Otherwise, plaintiffs and their lawyers will have incentives to spend resources on hair-splitting litigation over how many unlawful employment practices have occurred. $150,000 is a large enough amount to be an adequate and effective remedy for the type of conduct sought to be prevented, and no good purpose would be served by encouraging lawyers to use their inventiveness to circumvent the limitation oi $150,000. 137 Cong. Rec. H1666 (daily ed. Mar. 12, 1991). See also 137 analysis submitted with that bill explained: Cong. Rec. S3025 (daily ed. March 12, 1991)(similar comments in Senate analysis). A statement made by Senator Kennedy, a sponsor of the bill that became the 1991 Civil Rights Act, supports the interpretation that the cap applies per lawsuit rather than per claim. According to Senator Kennedy, "The bill does not give victims an unlimited entitlement to damages . . . . The amount of most compensatory and all punitive damages that each individual complaining party can obtain is limited to . . . $300,000 in the case of a respondent with more than 500 employees." 137 Cong. Rec. S15234 (daily ed. Oct. 25, 1991). Fogg and amicus point to a statement in a memorandum submitted by seven Republican sponsors of the bill that became the 1991 Act that describes the caps as "limitations ... placed -24- on the damages available to each individual complaining party for each cause of action under section 1981A." Sponsors' Interpretive Memorandum, 137 Cong. Rec. S15484 (daily ed. Oct 30, 1991). This statement, however, is taken out of context. The phrase "cause of action" in the Interpretive Memorandum was not used in response to an argument that the cap applies per lawsuit, but rather as part of a discussion distinguishing Title VII claims from claims made under 42 U.S.C. § 1981. See 137 Cong. Rec. S15484 (daily ed. Oct. 30, 1991). Liability under Section 1981 is unaffected by the cap provisions of Section 1981a and private defendants were, and continue to be, subject to unlimited damages under that statutory provision. Certainly, this single ambiguous reference in the legislative history is not sufficient to overcome the plain language of the statute, especially where other statements in the legislative history support the per- lawsuit interpretation. Fogg and amicus purport to find further suppor in the extension of remarks "placed in the Congressional R .ord after final passage of the Civil Rights Act of 1991" by C ..gressman Edwards. See 137 Cong. Rec. H9527 (daily ed. Nov. 1991).9 9Amicus' reliance on Barbara Lindemann & Paul Grossman, Employment Discrimination Law, at 1824, n. 260 (3d ed. 1996), as support for the cap per cause of action argument is similarly misplaced. The authors of that text rely principally upon the Sponsors' Interpretative Memorandum, which is taken out of context, and Congressman Edwards' after-passage remarks. The authors, however, fail to consider the ordinary and plain meaning (continued .) -25- Such post-enactment statements, however, are not part of the legislative history of the Act and could not possibly have influenced Congress in passing the Act. In any event, the isolated remarks of a single legislator are to be given litt'le weight. See Independent Bankers Ass'n of America v. Farm Credit Administration. 164 F.3d at 668( "The remarks of a single legislator, even the sponsor, are not controlling in analyzing legislative history"), quoting Chrysler v. Brown. 441 U.S. 281,' 311 (1979); Murphy v. Empire of America. 746 F.2d 931, 935 (2d Cir. 1984)(noting that "such isolated remarks are entitled to little or no weight"); Monterey Coal Co. v. Federal Mine Safety & Health Review Commission, 743 F.2d 589, 598 (7th Cir. 1984) (noting that to give "decisive weight" to the remarks of a single legislator "would be to run too great a risk of permitting one member to override the intent of Congress as expressed in the language of the statute"). See also Landaraf, 511 U.S. at 262, n. 15 ( a court would be well advised to take with a large grain of salt floor debate and statements placed in the Congressional Record which purport to create an interpretation for the legislation that is before us"), quoting 137 Cong. Rec. S15325 (daily ed. Oct. 29, 1991)(remarks of Senator Danforth). 9 9(...continued) of the word "action" in the damages cap statute and also fail to consider the uniform body of case law holding that the cap applied for each lawsuit. Thus, the authors' position should be given little weight. -26- 4. With a Per-Lawsuit Cap, a Plaintiff With Truly Distinct Claims Will Not Necessarily Be Barred From Recovering Multiple Cans_________________ ____________ _____________ A plaintiff with truly distinct claims may, under the appropriate circumstances, recover multiple caps by bringing separate lawsuits. The language of the 1991 Civil Rights Act indicates that separate actions that assert distinct claims are subject to separate caps under the Act. Attempting to seize on this result, Fogg argues that limiting a plaintiff to one cap in a given action will encourage plaintiffs to file multiple lawsuits to challenge a course of conduct that would normally have generated but a single lawsuit. This concern over multiple lawsuits is vastly overstated. Indeed, Fogg's approach would create more litigation, not less. This speculative fear about multiple lawsuits is no reason to ignore the plain language of the damages cap provisions. First, adherence to the statutory language and allowing only one cap per action is unlikely to result in any sigr ficant additional burdens on the courts. If a plaintiff he asserted distinct but related claims in separate actions, thf ~ourt may consolidate the actions for pre-trial proceedings o; • ven trial pursuant to Rule 42 (a) of the Federal Rules of Civi_ Procedure. Under Rule 42(a), a court may order consolidation oi actions "involving a common question of law or fact." The decision to consolidate is left to the district court's discretion. See United States v. Western Electric Co.. 46 F.3d 1198, 1207-08, n. -27- 1 7 (D.C. Cir. 1995). Such consolidation would not render the separate lawsuits a single action for purposes of applying thej damages cap.10 Second, a Title VII plaintiff is barred from splitting- single claim into multiple lawsuits by the well-established "doctrine against splitting claims." See, generally, 1A Corpus Juris Secundum, Actions § 177 (1985). Instead, a party.must generally raise in a single lawsuit all the grounds of recovery arising from a single transaction or series of transactions that can be brought together. Mars, Inc, v. Nippon Conlux Kabushiki-Kaisha, 58 F.3d 616, 619 (Fed. Cir. 1995). . This doctrine against splitting claims is "one application of the general doctrine of res judicata." Sutcliffe Storage & Warehouse Co. v. United States, 162 F.2d 849, 851 (1st Cir. 1947). For res judicata to attach, it is sufficient that a claim in one suit could have been presented in a previously filed suit. See Baltimore S.S, Co. v. Phillips, 274 U.S. 316, 321-22 (1927)("The injured respondent was bound to set forth in his first action for damages every ground of negligence ... upon which he relied, and cannot be permitted ... to rely upon them by 10For example, if a federal employee files separate suits, alleging separate, distinct, and unconnected discriminatory acts, such as non-promotion in different facilities at different times by different and unrelated supervisors, consolidation for presentation of the common questions of qualifications for promotion, promotion criteria, and promotion procedures may be appropriate. -28- piecemeal in successive actions to recover for the same wrong and injury"); Brown v. Felson, 442 U.S. 127, 131 (1979) (" [ r]es judicata prevents litigation of all grounds for, or defenses to, recovery that were previously available to the parties, regardless of whether they were asserted or determined in the prior proceeding"). Thus, the question whether a plaintiff has alleged independent claims will depend on whether a judgment in the first claim would bar a second claim under the doctrine of res judicata if it had been brought separately. This prohibition against splitting a claim will prevent plaintiffs from bringing a multiplicity of separate suits arising from a common nucleus of operative facts. Recently the Court of Appeals for the Seventh Circuit addressed that scenario in Smith v. Chicago School Reform Board of Trustees, 165 F.3d 1142 (7th Cir. 1999). One of the issues in Smith, a race discrimination case, was whether Title VII's $300,000 compensatory damages cap applies per plaintiff/suit o x per claim. As previously stated, the Court ruled that the cap applied per plaintiff/suit. Judge Easterbrook, however, warned that the Court's approach could lead victims of discrimination to file multiple suits in the hope that the greater the number of suits, the greater the maximum recovery. Yet, Judge Easterbrook was not concerned with this potential result because the law of claim preclusion would act as a limitation. Judge Easterbrook explained: -29- [L]itigants may not split into multiple packages different claims arising out of the same transaction.... 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.... Permitting cumulative awards in a single suit ... would induce creative pleading. Smith v. Chicago School Reform Board of Trustees. 165 F.3d at 1150. There are also enormous practical difficulties associated with applying the statutory can on a "per claim" basis where the Title VII plaintiff alleges a course of discriminatory conduct comprised of many separate acts, each one of which could be theoretically actionable under alternative legal theories. For example, adoption of a multiple cap interpretation would create substantial difficulties in arriving at a rational basis for parsing damages. Where, as here, liability is established by reference to events tied together over a period of time, and no evidence separately identifies specific damages associated with specific conduct, there is no principled basis for allocating intangible or emotional damages among such "claims" for purposes of applying the cap. In such cases, applying the damages cap among the "separate" claims becomes totally arbitrary. The risk of arbitrary results inherent in Fogg's approach makes nonsense out of the whole idea of a cap on compensatory damages, rendering litigation over the cap little more than a -30- pleading battle in which the plaintiff is compensated largely by reference to the inventiveness of plaintiff's counsel in pleading "claims." Such an approach ensures the imposition of greatly increased litigation costs on the courts and the parties in'Title VII cases, as counsel for plaintiffs and defendants would each have a powerful incentive for contesting the scope or "distinctiveness" of each "claim."11 The absence of a principled basis for parsing damages among claims also ensures widely disparate results between otherwise similar cases. These difficulties are avoided by following the plain language of the 1991 Civil Rights Act and limiting a damage award to a single cap in a single action. If the plaintiff brings a single action, then there is out a single cap. There would be no "This is particularly apt in the instant case. Here, Fogg is separately seeking $300,000 for each of the following post- 1991 Civil Rights Act violations found by the jury: 1) racially hostile work environment; position; 3) failing to prc 4) limiting his supervisor his EEO activities; 6) ord- him to the GS-12 level; 8) duty examination; and 9) a Appellant's Brief at 8-9. see Brown v. Brodv, 199 F. infra, at footnote 21, cla Title VII claims as a matt continuing and connected n failing to promote him to a GS-13_ 'te him to a GS-14 position; -sponsibilities; 5) inquiring about --'.g him back to work; 7) returning . iering him to take a fitness-for- ..xssing him from employment. See ;ording to the law of this Circuit, 46 (D.C. Cir. 1999), discussed ~ 5, 6, and 8 do not state separate ‘ of law. Moreover, in light of the -ure of Fogg's claims, his pursuit of his various claims (both administratively and judicially as a unitary matter) and the approach taken throughout the trial proceedings before the jury of a pattern and continuum, it would appear that the various claims raised by Fogg "arise" from a common nucleus of intertwined facts and cannot, as a matter of law, be split. In addition, in this case, it does not appear accidental that Fogg chose to file a single action covering a 13- year period of conduct for presentation to the jury. -31- litigation over the number of claims for cap purposes. Only if plaintiff brings separate lawsuits will the "distinctiveness" of the claims there asserted arise as an issue. As detailed above, in such cases, there is both a mechanism to prevent the proliferation of lawsuits asserting non-distinct claims (the doctrine against splitting claims), and a mechanism to ensure efficiency in adjudication (consolidation under the federal rules). In contrast, under Fogg's position, the parties would be faced with litigating the "distinctiveness" and "adverse employment action" of the purported claims in every lawsuit involving more than a single alleged act of discrimination. Thus, Fogg's interpretation of the damages cap provisions will result in far more burdensome litigation for the parties and the courts. 5. An Award at the Level Sought by Fogg in this Case Would be so Extreme as to be Punitive — a Result Precluded by the 1991 Civil Rights Act__________________________ Allowing a $2,700,000 award in this case, as Fogg seeks • here, would be so excessive that it could only be considered punitive damage, a result precluded by the 1991 Civil Rights Act. See 42 U.S.C. § 19 _a (b) (1) . In sum, the p_ain language of the statute, its legislative history, and the case law make clear that the damage cap applies per complaint, not per claim. There is simply no persuasive authority for Fogg's position that he should recover up to $2,700,000 in damages. Accordingly, the District Court properly -32- determined that the $300,000 statutory cap applied per lawsuit, not per claim. II. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN REFUSING TO AWARD FOGG EXPUNGEMENT, REINSTATEMENT, OR FRONT PAY. A. The Standard of Review The District Court's decision not to award expungement, reinstatement, or front pay is reviewable only for abuse of discretion. Webb v. District of Columbia. 146 F.3d 964, 976 (D.C. Cir. 1998). B. The District Court Did Not Abuse its Discretion in Denying Expungement, Reinstatement, or Front Pav 1• The Governing Legal Principles The enforcement provision of Title VII, 42 U.S.C. § 2000e- 5(g), vests the District Court with discretion to determine the appropriateness of equitable relief. The statutory scheme implicitly recognizes that there may be cases calling for one remedy but not another, and such discretionary choices are left to the Court's sole judgment guided by sound legal principles. Albemarle Paper Co. v. Moodv. 422 U.S. 405, 415-16 (1975). See also Ford Motor Co. v. Equal Employment Opportunity Commission. 458 U.S. 219, 226-27 (1982). This discretion allows the Court to "take into account 'extraordinary equitable circumstances that affect the legitimate interests of either party.'" Webb v. District of Columbia, 146 F.3d at 976, quoting McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 362 (1995). The District Court believed that the equitable relief sought -33- by Fogg was unwarranted by the circumstances and ot inappropriate. The District Court specifically foun removal for insubordination comported with civil serv regulations, and expressly found no discrimination in with the pre-1991 Civil Rights Act issues for which it the trier of fact. Thus, while the Government agrees with Fo and amicus' position that the District Court could not re determine the factual findings of the jury on post-1991 Civil Rights Act issues, the District Court still retained the discretion to determine the significance of those fi weigh all factors in determining the appropriateness of eguitable relief. 2. The District Court's Refusal to Grant Equitable Relief Regarding Fogg's Removal Was Appropriate Notwithstanding the Jury's Verdict______________ Fogg sought equitable relief regarding his September 1995 removal from the USMS. He based his request, presumably, on the ground that the jury, by one of its special interrogatories, found that this removal was the product of race discrimination and/or retaliation. The District Court properly concluded that equitable relief regarding Fogg's removal was inappropriate notwithstanding the jury's finding. The District Court previously determined in its review of the MSPB record that the USMS had legally sufficient grounds for removing Fogg from his position. While the jury found that Fogg was "discriminated against" regarding the -34- removal, it did not specifically find that the removal would not have occurred absent the discrimination. The jury was specifically asked to find: "Do you find that defendant U.S. Marshals Service discriminated against plaintiff Mathew Fogg, by disparate treatment and/or retaliation, in the following instances: ★ ★ ★ By dismissing plaintiff from the U.S. Marshals Service on grounds of insubordination in September of 1995?" JA 821, 823. The jury answered, "yes." The jury was not asked whether the discrimination it found as a matter of fact was the "but for" cause of Fogg's removal or whether, in the absence of discrimination, Fogg would have nonetheless been removed. Thus, there are no jury factual findings on these questions.12 While the District Court is bound in fashioning equitable relief by the factual findings of the jury under Kolstad, the District Court is only bound by the factual findings the jury' actually made. If the District Court, in deciding upon equitable 12Kolstad v. American Dental Ass'n. 108 F.3d 1431, 1440 (D.C. Cir. 1997), vacated on other grounds. 119 S.Ct. 2118 (1999), is not to the contrary. Kolstad instructs the District Court to follow the jury's factual findings with respect to a plaintiff's legal claims in fashioning appropriate equitable relief. In the instant case, however, because the question put to the jury was not the same as the legal issue decided by the District Court in reviewing the MSPB decision, the "jury's verdict does not govern the entire case." Williams v. First Government Mortgage and Investors Corp., 974 F. Supp. 17, 19 (D.D.C. 1997), aff'd in part on other grounds, 225 F.3d 738 (D.C. Cir. 2000). -35- relief, must determine facts in addition to those decided by the jury, the District Court must reasonably make its own determinations based on the evidence it heard.13 The District Court had previously granted partial summary judgment for the Government on Fogg's challenge to the MSPB decision upholding his removal for insubordination. Combined with the limited effect of the jury's factual finding regarding "discrimination" in the removal, the equities militated against equitable relief regarding Fogg's removal. Fogg's removal for insubordination was justified as a matter of fact and law and would have occurred in the absence of the discrimination the jury apparently found. The District Court properly determined that Fogg should not receive an equitable windfall when his own conduct created the circumstances for which he was removed. 13While the jury found Fogg's removal discriminatory and/or retaliatory, the District Court essentially considered equitable relief on this issue by using the mixed motive analysis under' 42 U.S.C. § 2000e-5(g)(2)(B). Under this provision, equitable relief is strictly limited to attorney's fees and costs where the employer has demonstrated, as the District Court believed it had done in this case, that Fogg would have nonetheless been terminated in the absence of discrimination and/or retaliation. The District Court did not abuse its discretion in determining that Fogg's insubordinate conduct merited removal separate from any discrimination or retaliation that may have been involved. This was amply demonstrated by the fact that the USMS officials involved in deciding Fogg's removal had no involvement in the underlying facts giving rise to Fogg's discrimination claims. See, e .q . , Lewis v. Babbitt, No. 97-CV-7576, 84 FEP Cases 775, 778, n. 1 (E.D. Pa. June 10, 1999)(jury verdict finding retaliation was not inconsistent with court's separate finding on equitable relief claim that employee should not be returned to law enforcement position). Supp. App., at 18-22. -36- 3. The District Court's Refusal to Award Reinstatement or Front Pay is Supportable on Alternative Grounds_____________________ _ This Court can consider any argument made on appeal that supports the District Court's judgment. Diamond v. District of Columbia, 792 F.2d 179, 186-87 (D.C. Cir. 1986). Consequently, the District Court's judgment can be affirmed on any basis supported by the record. Carney v. The American University. 151 F.3d 1090, 1096 (D.C. Cir. 1998). Here, the District Court believed that neither reinstatement nor front pay was appropriate because Fogg was properly removed from employment. Although the District Court did not address the Government's alternative reasons for denying reinstatement and front pay, the Government believes that other grounds adequately support the District Court's decision. Although reinstatement is a preferred remedy, it is not appropriate in every case. Webb v. District of Columbia. 146 F.3d at 976. Here, reinstatement is not an appropriate remedy oecause Fogg is admittedly unready, unwilling, and unable to return to work in the USMS and remains on workers' compensation indefinitely, and does not desire to return to the USMS. For this reason alone, appellant cannot be reinstated. Newhouse v. McCormick & Co., Inc., 110 F.3d 63.5, 641 (8th Cir. 1997).14 14Reinstatement is likewise inappropriate when, as demonstrated in this case, there is animosity between the employee and employer. Webb v. District of Columbia. 146 F.3d at (continued...) -37- Front pay is an equitable remedy that may compensate an individual when reinstatement is not appropriate. See Williams v. Pharmacia, Inc., 137 F.3d 944, 952 (7th Cir. 1998), aff'a 956 F. Supp. 1457, 1465-66 (N.D. Ind. 1994). An award of front pay requires that an employee be available to work in his prior employment, but for equitable reasons, actual reinstatement is not appropriate. In the instant case, Fogg is unavailable to return to his prior work and is receiving non-taxable workers' compensation benefits. Thus, he is not entitled to an award of front pay as a matter of law.15 The EEOC in several administrative decisions, has repeatedly endorsed the view that front pay is not an appropriate equitable remedy for an individual who is medically unable to return to his work and is receiving workers' compensation benefits. See, e .q ., Baxter v. Henderson. EEOC No. 01983981 (July 17, 2000), 2000 WL 1090306 (E.E.O.C.); Brinkley v. Henderson, EEOC No. 05980429 (August 12, 1999), 1999 WL 683708 '(E.E.O.C.); Finlav v. Rnnvn.n. EEOC No. 01942985 (April 29, 1997), 1997 WL 221819 (E.E.O.C.). EEOC administrative decisions, to the extent they do not conflict 14(... continued) 977 . In addition, Fogg sought nearly nine years of front pay at increasingly higher grade levels over time for a total of approximately $2,500,000. An award of front pay for this length of time would be unduly speculative and thus not appropriate. See, e . q ■ , Jefferson v. Mivets System Technology, Inc.. 986 F. Supp. 6, 8 (D.D.C. 1997). -38- with law, are to be accorded considerable weight and deference. See Fitzgerald v. Secretary, United States Department of the Veterans Affairs. 121 F.3d 203, 207 (5th Cir. 1997). Consequently, in any event, Fogg would not be entitled to any award of front pay. III. THE DISTRICT COURT PROPERLY DISMISSED FOGG'S NON DISCRIMINATION, CIVIL SERVICE CLAIMS REGARDING HIS REMOVAL A. The Standard of Review The standard of review of the MSPB's decision upholding Fogg's removal on non-discrimination, civil service grounds is whether the decision was arbitrary and capricious, an abuse of discretion, not supported by ubstantial evidence, or otherwise not in accordance with law. 5 U.S.C. § 7703(c). See Lindahl v. Office of Personnel Management:. 470 U.S. 768, 774, n. 5 (1985); Barnes v. Small, 840 F.2d 972, 979 (D.C. Cir. 1988). After reviewing the MSPB record here, the District Court affirmed the decision of th MSPB. The District Court determined the USMS had legally suffic t grounds for removing Fogg from his position for refusing, two occasions, to attend a USMS- ordered fitness-for-duty ex ^nation. The District Court was of the view that even though F -g believed the USMS' order to be further evidence of discrimination and/or retaliation, Fogg, as a sworn law enforcement officer, had a duty to obey the order, appear for the examination, and grieve the matter later if he desired. Thus, the District Court believed the USMS was well -39- within its authority to remove Fogg for clear and repeated insubordination. There was ample evidence in the MSPB record to support the District Court's decision. Therefore, the District Court's decision regarding this non-discrimination issue should not be disturbed. Under the arbitrary and capricious standard, the MSPB decision merely has to have a rational basis in law. Williams v. Rdce, 983 F.2d 177, 180 (10th Cir. 1993). Substantial evidence is defined as relevant evidence of record that a reasonable mind might accept as adequate to support a conclusion. Bradley v. Veterans Administration, 900 F.2d 233, 234 (Fed. Cir. 1990). To determine whether the MSPB decision is supported by substantial evidence, the reviewing court will generally not reweigh the evidence or substitute its own judgment for that of the MSPB. See Carr v, Reno, 23 F.3d 525, 530 (D.C. Cir. 1994). The review is deferential to the MSPB decision. See Maulding v. Sullivan. 961 F. 2d 694 (8th Cir. 1992), cert. denied, 507 U.S. 910 (199-3). B . The MSPB Decision The MSPB found that the USMS orders directing Fogg to undergo fitness-for-duty examinations were lawful and complied with applicable personnel regulations. The MSPB further found that Fogg's failure to attend the fitness-for-duty examinations on January 4 and 17, 1995 were willful and intentional. JA 909- 914 . Specifically, with regard to the January 4, 1995 -40- examination, the MSPB found that Fogg was adequately informed that he was required to report for a medical examination at 8:30 a.m. on January 4, 1995, but he chose not to do so, even though the examination did not conflict with the District Court motion hearing scheduled later that afternoon. With regard to the second scheduled examination, the MSPB found that Fogg "was on clear notice of the second appointment, he knew the TRO motion had been denied, and he took no action to report for the January 17, 1995 examination." JA 915-917. Further, the MSPB found a clear nexus between the sustained charge of insubordination and an adverse impact upon the efficiency of the service. According to the MSPB, "[EJmployees are expected to respect authority and to follow superior's orders, and that the failure to do so is a serious breach of an employee's responsibilities." Finally, the MSPB reviewed the penalty of removal under the seminal MSPB standards of Douglas v. - Veterans Administration, 5 M.S.P.R. 280 (1981), and concluded that, although removal was a severe penalty, it did not exceed the tolerable limits of reasonableness in light of the fact that Fogg was insubordinate and that law enforcement officers are held to a higher standard than other federal employees. JA 918-920. -41- c. The MSPB Decision Was Correct This case presents no basis to overturn the MSPB decision sustaining Fogg's removal from the USMS. The USMS terminated Fogg for insubordination, based on Fogg's failure to report for a fitness-for-duty examination on two occasions. Insubordination by a federal employee is defined as the willful and intentional refusal to obey an authorized order of a superior, which the superior is entitled to have obeyed. Phillips v. General Services Administration. 878 F.2d 370, 373 (Fed. Cir. 1989). An employee has no right to refuse a superior's order, even where the order is improper. Wiggins v. National Gallery of Art. 980 F.2d 1436, 1438 (Fed. Cir. 1992). The failure to appear at an agency-directed fitness-for-duty examination constitutes insubordination and ground for removal. See Risner v. Department of Transportation. 677 F.2d 36, 38 (8th Cir. 1982); Smith v. United States Air Force. 566 F.2d 957, 9.58 (5th Cir.), cert, denied, 439 U.S. 819 (1978); Hodgsdon v. Department of the Air Force, 704 F. Supp. 1035, 1039 (D. Colo. 1989); Pryon v. United States, 212 Ct.Cl. 578, cert, denied. 434 U.S. 824 (1977). In the instant case, the USMS directed Fogg to report for a fitness-for-duty examination on two separate occasions. The directives were clear and provided Fogg with sufficient notice to comply. The MSPB record established that Fogg simply refused to -42- comply with the USMS' directives for personal reasons. Fogg offered a variety of reasons for his non-compliance with the examinations. These reasons included: the fitness-for-duty examination was unnecessary because Fogg was eligible for workers' compensation benefits;16 the examination was unnecessary because Fogg was already under the care of his physician, taking medications, and the test results could be skewed; and the examination, first scheduled for 8:30 a.m. on January 4, 1995, conflicted with Fogg's preparation for the District Court hearing on his temporary restraining order at 2:00 p.m. on January 4, 1995. Overriding all of Fogg's petty reasons for failing to attend the examinations was his contention that the order to attend the examinations was the product of continued discrimination. 16 Fogg contends that, because he was receiving Workers' Compensation benefits, the USMS' fitness-for-duty examination violated 5 C.F.R. § 339.301(c) insofar as the USMS allegedly failed to properly identify a position in which it believed He could fill compatible with his medical limitations. In accordance with MSPB precedent, see Abatecola v. Veterans Administration, 29 M.S.P.R. 601, 607, aff'd, 802 F.2d 471 (Fed. Cir. 1986), and the administrative record evidence, the MSPB found otherwise. In any event, 5 C.F.R. § 339.301(b) (3) provided independent authority for the USMS to have ordered Fogg to attend a fitness-for-duty examination. Pursuant to that regulation, an agency may require an individual who occupies a position which has physical requirements to report for a medical examination whenever there is a direct question about the employee's continued capacity to meet the physical or medical requirements of the position. In the instant case, the administrative record clearly indicated that Fogg occupied a position which has medical standards and that there was a direct question about his capacity to meet the physical or medical requirements of his position. Thus, the fitness-for-duty examination comported with law. -43- The MSPB reviewed the evidence and determined that Fogg's excuses were patently insufficient to justify his non-compliance with a lawful order. There is ample support in case law for this determination. See, e.g., Hazel v. United States Postmaster General, 7 F.3d 1, 4 (1st Cir. 1993) (An employee "right" to oppose discrimination is not a right to refuse to obey an order); Devera v. Adams, 874 F. Supp. 17, 22 (D.D.C. 1995) ("An employer is entitled to expect cooperation from its employees . . . and the imposition of discipline . . . was reasonable."). Thus, there was substantial evidence in the record to support the MSPB's finding that plaintiff was insubordinate. Fogg, as a federal law enforcement officer, is held to a higher standard of conduct than are other employees. See Watson v. Department of Justice, 64 F.3d 1524, 1530 (Fed. Cir. 1995). "A law enforcement agency is entitled to insist that its agents follow orders. Obedience is a high value in such an organization." Ryan •, , Department of Justice, 950 F.2d 458, 4-61 (7th Cir. 1991). Consequently, the MSPB determined that the penalty of removal w :s within the bounds of reasonableness for a law enforcement offi er who refused to comply with a superior's order. This finding,, likewise, should not be disturbed. IV. THE DISTRICT COURT PROPERLY FOUND AGAINST FOGG REGARDING FOGG'S PRE-NOVEMBER 21, 1991 TITLE VII ALLEGATIONS A. The Standard of Review The District Court found that Fogg failed to prove his -44- claims of discrimination, retaliation, and hostile work environment regarding his pre-1991 Civil Rights Act allegations against the U5MS. Fogg's pre-1991 Civil Rights Act claims consisted of his allegations that he was verbally reprimanded and was temporarily transferred without loss of grade or pay from U.S. District Court Operations to S-uperior Court Operations within the U.S. Marshal's Office for the District of Columbia in September 1985. Fogg also complained that he failed to receive annual performance ratings for the two-year period beginning in April 1990. Further, Fogg complained that he was not selected for a promotion in May 1990. Instead, the promotion went to the personal friend of the then Director of the USMS, K. Michael Moore. Finally, Fogg generally and vaguely claimed that he was subjected to a racially hostile work environment while working in the USMS.17 17Fogg also argues in his brief that the USMS failed to process his 1985 discrimination complaint in a timely fashion. This claim, however, does not constitute a separate Title VII cause of action. The remedy for an agency's failure to process an administrative complaint of discrimination is either to file a new administrative complaint of discrimination to compel the agency into taking action or to file a lawsuit in U.S. District Court, just as Fogg did in this case. See 42 U.S.C. § 2000e- 16(c). The courts have uniformly held that Title VII does not provide either an express or implied cause of action to challenge an agency's investigation and processing of an EEO complaint. See McCottrell v. Equal Employment- Opportunity Commission. 726 F.2d 350, 351 (7th Cir. 1984); Storey v. Rubin. 976 F. Supp.1478, 1483-84 (N.D. Ga. 1997), aff'd, 144 F.3d 56 (11th Cir. 1998). In any event, the trial evidence clearly demonstrated that the USMS proffered legitimate, non-discriminatory reasons for its failure to process Fogg's complaint within the regulatory time limits. (continued...) -45- Fogg's basis for arguing that these actions were discriminatory is based principally on his notion of an organizational culture that is biased against African-Americans. This conclusory argument is based on the following factual ' propositions. There is a steep racial pyramid in the USMS in which there was not, until recently, any African-Americans at the top of the USMS Headquarters management structure, and few African-Americans at the Chief Deputy U.S. Marshal position.18 The lack of African-American representation at the top ladder of the USMS organization has caused, in part, a perception by certain African-American employees of general unfairness in the USMS. The District Court properly found that this evidence fell far short of legally establishing race discrimination and reprisal. The District Court's findings of facts and conclusions of law regarding Fogg's pre-1991 Act discrimination claims are reviewable under the clearly erroneou - standard. Rule 52(a) of 17( . continued) See, generally, April 21, 1998 testir .ny of Gerald Elston, the USMS EEO Officer during the relevant ime period. 18The fact that an employer had n African-American upper management officials is irrelevant tc prove discrimination absent a comparison to the relevant labor pc ol. Carter v. Ball, 33 F.3d 450, 457 (4th Cir. 1994). See also Evans v. McClain of Georgia. Inc. , 131 F.3d 957, 963 (11th Cir. 1997). In any event, Fogg's reliance on the USMS employment statistics is factually misleading. The evidence established that, during the trial period, almost 25% of the United States Marshals were African- Americans. The United States Marshals are the senior management officials in the individual district offices. JA 372. -46- the Federal Rules of Civil Procedure. B . 1985 Reprimand and Temporary Reassignment The trial evidence established that while Fogg was assigned to the USMS Headquarters task force, he obtained permission to take two days sick leave from Robert Leschorn, his supervisor on the task force, and separately obtained the use of a Government vehicle from local district management. It was undisputed that neither set of managers knew the full purpose of Fogg's request - - to keep the Government vehicle while on sick leave. It was also undisputed that Fogg took the Government vehicle to his residence while he was on sick leave for two days. This clearly was a prohibited use of official Government vehicles. Misuse of a Government vehicle carries a mandatory minimum disciplinary punishment of thirty days. See 31 U.S.C. § 1349.19 When Senior Chief Deputy U.S. Marshal Hein discovered that a Government vehicle was needed in a judicial assignment, and that Fogg had taken a vehicle and was on sick leave, Hein was understandably upset. When Hein informed U.S. Marshal Rutherford of the allegation of misuse of a Government vehicle, instead of following Hein's recommendation for initiating disciplinary proceedings, Rutherford specifically directed Hein to "chew Fogg out" and reassign him to Superior Court so that Fogg "could think 19 U.S. Marshal Rutherford testified that because of the shortage of vehicles, a Deputy U.S. Marshal could not take a Government vehicle home if he was going to be on leave for more than one day. JA 280-281. Fogg did not dispute this. -47- about his actions."20 Thus, at Rutherford's direction, Hein called a meeting to verbally admonish Fogg and reassign him to Superior Court Operations within the U.S. Marshal's Office. Rutherford decision to admonish Fogg and reassign him to Superior Court was unquestionably legitimate and nondiscriminatory.21 The fact that Rutherford's subordinate, Hein, implemented Rutherford's decision did not diminish the nondiscriminatory 20Even years after the incident, Rutherford believed that the oral admonishment was not a big deal, merely a "spank on the wrist to get Fogg's atu^ntion." JA 282. 21 The law of this Circuit makes it clear that Fogg's reassignment to Superior Court Operations within the U.S. Marshal's Office was not an adverse personnel action within the meaning of Title VII. In Brown v. Brodv, 199 F.3d 446, 457 (D.C. Cir. 1999), this Court held that "a plaintiff who is made to undertake ... a lateral transfer ... does not suffer an actionable injury unless there are some other materially adverse consequences affecting the terms, conditions, or privileges of ... employment.... Mere idiosyncracies of personal preference are not sufficient to state an injury." Here, Fogg did not present any facts in support of any loss of pay or overtime as a result of his short reassignment to Superior Court. Rutherford testified that reassignment to Superior Court "was just another part of the job." JA 257. Thus, this reassignment, however - personally unpleasant to Fogg, simply did not violate Title VII. Nor can the manner in which Hein chewed out Fogg be violative of Title VII. The manner of the verbal admonishment is not an adverse action because it had no affect on terms, conditions, and privileges of employment. Brown v. Brodv, 199 F.3d at 458 (letter of admonishment is not an adverse action). See also Caussade v. Brown, 924 F. Supp. 693, 702 (D. Md. 1996), aff'd, 107 F.3d 865 (4th Cir. 1997)(public verbal admonishment is not an adverse action). "Chewing out" was a common-place form of discipline in the U.S. Marshal's Office. Moreover, Hein had legitimate reasons for having the other supervisors present. He needed them to be there to make sure that Fogg had not obtained fully informed consent to use the vehicle on sick leave. Fogg, however, when he was a supervisor on the Lucas Task Force, "chewed out" a subordinate publicly and did not believe it improper. -48- reasons for the reprimand and reassignment. Fogg produced no evidence of any discriminatory animus by Rutherford or Hein in the decision to admonish and reassign him. There was no evidence that Hein misled Rutherford regarding Fogg's taking the vehicle home while on sick leave. Thus, the District Court correctly found against Fogg on this pre-1991 Civil Rights Act claim. Fogg appears to argue in his brief that Hein intentionally misled Rutherford. According to Fogg, Rutherford directed Hein to find out whether Fogg misused a Government vehicle, and if he did, to chew him out and send him to Superior Court. According to Fogg's version of the trial testimony, Hein discovered that Fogg had not misused the Government vehicle, but nevertheless chewed him out. See Appellant's Brief at 40. Rutherford's testimony regarding this matter is different from the testimony Fogg portrays. Rutherford met with Hein, told Hein to find out the facts, and then "chew him out" and send him to Superior Court. JA 256. Moreover, contrary to Fogg's revisionist interpretation of the trial testimony, the individuals involved in this matter never testified that Fogg had not misused a Government vehicle. There was no evidence from which to infer that Hein made up the scenario solely to discipline Fogg. C . 1990-92 Annual Performance Evaluations The trial evidence established that Fogg did not receive performance evaluations for two rating periods between 1990 and -49- 1992. The evidence, however, clearly demonstrated that the failure to give Fogg his annual performance ratings was due to confusion by local district management regarding whether they, as Fogg's district supervisors, or Jose Antonio Perez, as Fogg's supervisor during his detail to the MATF during that period, should prepare Fogg's ratings. The evidence demonstrated that during Fogg's first year on the MATF in 1989, the year in which Perez also actively supervised him, Perez provided significant input into Fogg's rating, which was then prepared into a rating of record by district management. When Perez left the MATF in 1990, Fogg's ratings slipped through the cracks of divided supervisory responsibility. Perez assumed that the district would continue providing plaintiff with his rating of record. Yet, district management believed otherwise. JA 269, 277, 689-693, 705-706. There was not one scintilla of evidence even to suggest that the failure to provide Fogg with his annual ratings while he was -on the MATF from 1990 to 1992 was the result of unlawful racial discrimination or retaliation. Thus, the District Court's finding for the Government on this claim was appropriate.22 22 Perez' action in recommending Fogg for a quality step increase belies Fogg's assertion of discriminatory motive by Perez. In any event, Fogg was promoted to a Grade 13 position in 1991, even absent the annual ratings. JA 160, 636, 850, 853. -50- D. 1990 Earp Promotion The undisputed trial evidence established that at the time of the selection of the promotion at issue, the Director of the USMS, K. Michael Moore, had been employed in the USMS for less than six months. Moore knew of and worked with Michael Earp extensively during the time Earp was a Deputy U.S. Marshal in the Northern District of Florida and Moore was concurrently employed as an Assistant U.S. Attorney (and later, U.S. Attorney) in the U.S. Attorney's Office there. As a result of their personal friendship and professional relationship, Moore believed that Earp was the better qualified for the promotion. JA 942-945, 953. No matter how much negative spin Fogg wants to put on this issue, the Director of the USMS selected his friend from Florida instead of Fogg for a promotion. The simple fact alone that Moore promoted his personal friend instead of Fogg, whom he barely knew, did not constitute a Title VII violation.23 S e e :aken v. Oklahoma Coro. Commn., 125 F.3d 1366, 1370 (10th Cir. 997); Foster v, Dalton, 71 F.3d 52 (1st Cir. 1995); Autry v. Fogg took issue with the fact that he was rated significantly higher than Earp on the scoring sheet. This is not relevant in light of the fact that both Fogg and Earp were judged qualified for the position. In any event, Moore routinely selected other than the top-ranked candidates for positions. In fact, the evidence demonstrated that in another merit promotion selection, Moore selected Donald Horton, an African-American, over other higher-rated white candidates. JA 368, 958. -51- North Carolina Department of Human Resources, 820 F.2d 1384 (4th Cir. 1 98 7 ) 24; Myrick v. Runyon, 898 F. Supp. 827, 831 (M.D. Ala. 1995). Thus, the District Court correctly determined that Fogg's non-selection for promotion by Moore was not a Title VII violation.25 E • Pre-1991 Civil Rights Act Hostile Work Environment To establish an actionable hostile work environment claim under Title VII, Fogg was required to demonstrate that he was subjected to unwanted verbal or physical conduct based on his race that was sufficiently severe or pervasive to alter the terms or conditions of his employment and create an abusive working environment. Meritor Savinas Bank. FSB v. Vinson. 477 U.S. 57, 67 (1986) . Actionable racial harassment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that Fogg, in fact, found to be In Autry, the Fourth Circuit rejected the contention that an inference of racial discrimination arises in a situation where friendship is the likely basis for promotion where those in power are white. Autry v. North Carolina Department of Human Resources, 820 F.2d at 1385. 25Nor was Moore's selection of Earp instead of Fogg the result of retaliation for Fogg's 1986 EEO complaint. Moore did not generally know Fogg or the fact that Fogg had previously filed an EEO complaint. Further, Fogg's 1986 EEO complaint concerned allegations against Hein. The court correctly discounted any retaliatory motive on the part of Moore in 1990 based on Fogg's complaint against Hein in 1986. In any event, Moore's selection of Fogg for a Grade 13 promotion a short time later contradicted any discriminatory or retaliatory intent by Moore against Fogg. -52- hostile and abusive. Faraqher v. City of Boca Raton. 118 S.Ct. 2275, 2283 (1998). In order to determine whether conduct rises to this level of hostility or abusiveness, the courts look at the totality of the circumstances, including the frequency of the conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993) . The Supreme Court has made it clear that these standards for judging hostility or abusiveness are sufficiently demanding to ensure that Title VII does not become a "general civility code." Faraqher, 118 S.Ct. at 2283-84. Actionable harassment must be severe and pervasive enough to be distinguishable from the ordinary tribulations of the workplace. Faraqher, 118 S.Ct. at 2284. It is not enough that the workplace is not to an employee's liking. "Title VII's protections do not insulate one from either the normal day-to-day dissatisfactions and annoyances commonly arising in any workplace or from the sometimes unpleasantness of a surly, strict or even personally insufferable and demanding supervisor." Settle v. Baltimore County, 34 F. Supp.2d 969, 991 (D. Md. 1999), aff'd, 203 F.3d 822 (4th Cir. 2000). Offhand comments and isolated incidents (unless extremely serious) will not generally rise to the level of a hostile work environment. The sporadic use of abusive language is not actionable. Faraqher, 118 S.Ct. at 2284. Conduct must be -53- extreme to amount to a change in the terms and conditions of employment. Id. See also Barbour v. Browner, 181 F.3d 1342, 1348 (D.C. Cir. 1999). At trial in this case, Fogg never produced any evidence that he was personally subjected to a continuing, abusive, intimidating, or hostile work environment based on his race. The sole incident in support of Fogg's pre-1991 Civil Rights Act hostile environment claim is his September 17, 1985 oral admonishment where the witnesses present all testified that no racially offensive terms were used. See Beckwith v. Career Blazers Learning Center, 946 F. Supp. 1035, 1051 (D.D.C. 1996) (employer criticism does not constitute hostile environment). Fogg argues that he was subjected to a racially hostile work environment based on his across-the-board assertion that the USMS, as a whole, is a racially hostile working environment for African-Americans, which, in turn, was based solely on evidence that Chief Deputy Hein used racial epithets (not directed against or witnessed by Fogg), the no African-Americans-at-top Headquarters management structure of the USMS, and the generalized perceptions of a few employees who perceived unfairness. These assertions fall far short of establishing that Fogg was personally subjected to a racially hostile work environment. Caldwell v. ServiceMaster Corp.. 966 F. Supp. 33, 51, n. 24 (D.D.C. 1997). See also Bermudez v. TRC Holdings. 138 F.3d 1176, 1180-81 (7th Cir. 1998); Witt v. Roadway Express. 136 -54- F.3d 1424, 1432-33 (10th Cir. 1998), cert. denied, 525 U.S. 881 (1998)'' Tidwell v. Meyer's Bakeries, Inc., 93 F.3d 490, 496, n. 5 (8th Cir. 1996). CONCLUSION WHEREFORE, Appellee respectfully submits that the judgment of the District Court should be affirmed. WILMA A. LEWIS, United States Attorney. R. CRAIG LAWRENCE, ALEXANDER D. SHOAIBI, Assistant United States Attorneys OF COUNSEL: JOE LAZAR, Associate General Counsel United States Marshals Service -55- SUPPLEMENTAL APPENDIX 1 . Transcript of MSPB Hearing, dated April (Greason Testimony) 18, 1996 2. Transcript of MSPB Hearing, dated April (Coon Testimony) 18, 1996 3. Transcript of MSPB Hearing, dated April (Fogg Testimony) 18, 1996 4 . Lewis v. Babbitt, No. 97-CV-7576, 80 FEP (E.D. Pa. June 10, 1999) Cases 775 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 116 member, you know, have a discussion about their feelings. And we try to reach a consensus -- well, we do reach a consensus. At some point we reach a consensus, and that's what the penalty is. And then I send the results in to Eileen, and I await for the proposal to be drafted, and it comes to me, and I sign it. Q Does the committee generally follow your lead as to what the think the penalty should be? A I'd say we probably stay in the range, in most instances. There have been a couple instances where Enrique or Lori felt very strongly about a different opinion in terms of what the penalty should be and presented, you know, their thoughts to me and maybe changed my mind. Q At some point in time did you get a case involving Matthew Fogg? A Yes, I did. Q And how did the proceedings go when you got the Matthew Fogg case? A It went rather quickly. Basically, based on the information that was presented to us, our decision was removal. It wasn't difficult to reach. Diversified Heportinq Services, Inc. 1025 VERMONT AVENUE. N.W. SUITE 1250 WASHINGTON, D.C. 20005 (202) 296-2929 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 117 Q Was there a dissention or discussion on it? A No. There was no dissention. I mean, we were all in agreement with respect to that case. Q And why did the panel recommend -- well, first of all, what did the panel recommend? A The panel recommended removal. Q And why did the panel recommend removal? A Basea on the facts as we had them presented to us, the fact that he was instructed to take his fit for duty examination for purposes of seeing whether or not he could come back to work, and he -- according to the facts, he did not do that. So that was failing to follow instructions, so we have no option but removal in that instance. 1 Is it that you have no option or -- When I say we have no options, the penalty can ran' from reprimand to removal, but the panel feels so str ~?y about it being removal that that's what we chose to do. Q Did the Director of the Marshal Service ever suggest to you how you should decide the Matthew Fogg case? A No. I had no discussions with the Director. Diversified Repartinq Services, Inc. 1025 VERMONT AVENUE, N.W. SUITE 1250 WASHINGTON, D C. 20005 (202) 296-2929 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 127 Douglas mitigating factors? A I'm not familiar with what that is. Q Let me ask you specifically did you give consideration to whether the offense was malicious or for gain? A Well, the fact that he was ordered to go and he di'd not go, and then there was a second fitness for duty scheduled, and he didn't appear for that one, that was the only facts that we had. We didn't have any facts as to why he did not go. Q Did you consider his service record? A Yes . Q Did you consider the fact that he had a good service record? A Well, we really wouldn't have known, you know, with respect to how good his record was. I mean, the fact sheets that we got I believe did not address that issue at all. Q Did you consider any mitigating circumstances such as unusual tensions, mental impairment, personality problems, mental impairment or harassment? A The only discussion we had was the fact that he had been off work, I believe it was, sometime since 1993. The Diversified Reporting Services, Inc. 1025 VERMONT AVENUE, N.W. SUITE 1250 WASHINGTON, D.C. 20005 (202) 296-2929 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 face that he had been off work, the fact that he was ordered for the two exams and did not go to us was strong enough evidence to us suggested that he deliberately wasn't going to go, and therefore we felt our decision to remove him was one that was necessary. Q Were you aware that 'the Deputy Director had the day before the January 4th exam ordered that exam to be rescheduled? A According to what we read, yeah. You assume that he didn't make the first one, and the second one was scheduled. As to who scheduled it or how it came to be scheduled the second time we did not know that. Q Did you consider a lesser penalty? A No, we did not. Q Have you had another situation before you-at any time this panel has been convened where there was a failure to report for a fitness for duty examination? A The closest thing I can recall was a case where -- I don't believe the issue was not appearing for a fitness for duty exam. The issue was one where the fitness -- the results of the fitness for duty exam indicated that the person was not fit for duty, and that person was in, I Diversified Repartinq Services, Inc. 1025 VERMONT AVENUE. N.W. SUITE 1250 WASHINGTON. D.C. 20005 (202) 296-2929 128 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 A No, we did not. Q Why? A Failing to follow instructions is something that is -- just has to be done with respect to a Deputy United States Marshal, because we are a law enforcement agency, and you have that obligation. If you're instructed to do something, you have to do it. And in this particular case, if you're instructed to go to a fitness for duty examination, there are no options in that. If, for some reason, you can't go, then I guess you would have to work that out with the Marshal Service, and in this particular case, it's my understanding that there was even a second fitness for duty exam scheduled, and for whatever reasons just did not go, Mr. Fogg chose not to go to that exam as well. Consequently, we have nothing else that we're going to do. My committee, anyway, has taken the position that's removal. MR. SMITH: Thank you. JUDGE BOULDEN: Anything else? RECROSS EXAMINATION Diversified Reportinq Services, Inc. 1025 VERMONT AVENUE. N.W. SUITE 1250 WASHINGTON. D.C. 20005 (202) 296-2929 131 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 A I asked Mr. McWhirter to communicate to Mr. Fogg and his counsel, Mr. Costello, that I wanted to afford him another opportunity to attend a fitness for duty physical. Q Did you get a response to that offer? A Actually, I received two, to my recollection. The first was an oral that, in fact, Mr. Fogg was going to attend a fitness for duty, and subsequently I heard from Employee Relations that, in fact, he was not. Q Did you receive any sort of written correspondence from Mr. Fogg or Mr. Costello? A From Mr. Costello, yes. Q And did it say that it was inappropriate for have an exam? A To the best of my recollection, I think the letter from Mr. Costello reflected that Mr. Fogg was agreeable to taking the fitness for duty but, in fact, Mr. Costello advised him not to. He felt it was inappropriate, or words to that effect. Q And so did you then go on to decide the case? A I did. Q And what did you decide? Diversified Heportinq Services, Inc. 1025 VERMONT AVENUE. N.W. SUITE 1250 WASHINGTON, D.C. 20005 (202) 296-2929 138 was that that you had? r\r\ r\ s 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 139 A I decided to sustain the proposed removal by the Disciplinary Panel. MR. SMITH: If I may have a minute, your Honor. BY MR. SMITH: Q Why did -- I'm sorry. Did you say what your decision was? A Yes. I sustained the recommendation by the Disciplinary Panel. Q. And why did you sustain it? A After review of the file and everything contained in the file as well as all correspondence from Mr. Fogg to his counsel, Mr. Costello, and reviewing all the factors required, I reached the decision that, in fact, Mr. Fogg's failure to report for the two previously scheduled fitness for duty exams was, in fact, insubordination, and I sustained the ruling. Q Before you made your decision, did the Director ever tell you what result he wanted in the Mat Fogg case? A No, he did not. Q Did the Deputy Director ever tell you what decision he wanted in the Mat Fogg case? A No, he did not. Diversified Repnrtinq Services, Inc. 1025 VERMONT AVENUE. N.W. SUITE 1250 WASHINGTON, D C. 20005 (202) 296-2929 r\r\n~r 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 143 Q The decision to offer the opportunity for another examination was made solely by you? A Solely by me. Q Did you talk to anybody else in the Service about that? A No, I did not. Well, let me take that back. I may have discussed it, and I'm certain that I discussed it with Mr. McWhirter. Q Do you recall your discussion with Mr. McWhirter and what was said? A Basically, I believe that I told him that although I felt there was grounds to sustain a removal I wanted to give Mr. Fogg one more opportunity to undergo the fitness- for duty exam, and he told me that that was within my powers to do that. And I asked him to facilitate it. Q All right. Do you think that these three questions I've raised here were improper in any way? A No. Q Were you aware that Deputy Fogg was on disability with worker's compensation at this time? A I believe I was. Diversified Heportinq Services, Inc. 1025 VERMONT AVENUE, N.W. SUITE 1250 WASHINGTON, D.C. 20005 (202) 296-2929 A That is correct. r\r\n o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 A No. My only consideration was the charge of insubordination. Q All right. Let me give you a copy of the decision letter, which is dated September 20, 1995. This is Attachment B to our Notice of Appeal'. A Is there a third page to this as well? Q I'm sorry. The most important page, the one wxtn your signature. A I don't know what I was supposed to follow there. Thank you. Q Do ycu recall this, sir? A Yes, I do. Q Did you draft this? A No, did not. Q Who .s this drafted by? A It ’ ~s drafted by Mr. McWhirter. I dictated to him my feelings o "he matter, my decision in the matter, and he composed the etter. Q In the third paragraph of this order, you say that you have considered the Douglas v Veteran Administration factors? 144 Q Did that enter into your considerations? Diversified Heportinq Services, Inc. 1025 VERMONT AVENUE. N.W. SUITE 1250 WASHINGTON, D.C. 20005 (202) 296-2929 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 A That's correct. Q Can you recall considering those factors specifically? A I did. Q Did you consider Deputy Fogg's service record? A I did. Q What factor did that play in this? A As fax. as I could determine and from what was reflected in the file, Deputy Fogg had no previous disciplinary actions. He had, as far as I could determine, a good service record. Q Did you consider that to be a mitigating factor? A Not in total. Q Did you consider whether the offense was malicious or for gain? MR. SMITH: Well, could we — if we're going to deal with the Douglas Factors, could we state them correctly? I actually have -- your Honor, I have marked as a government exhibit and I would propose to use the Douglas Factors, just the two pages in the Douglas case. If we want to deal with them, we could -- JUDGE BOULDEN: My only concern is I'm not sure if Diversified Reporting Services, Inc. 1025 VERMONT AVENUE, N.W. SUITE 1250 WASHINGTON, D.C. 20005 (202) 296-2929 145 ! r»r\ v n 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 the witness had that document or something like it in front of him at the time. Some people, sort of, have them memorized or a shorthand version. So why don't we find out from the witness if he was looking at the Douglas Factors themselves. MR. COSTELLO: Mr. Smith certainly has a right to examine them and redirect his witness and ask him anything additional. What I'm, obviously, getting at here is that we just have boilerplate, or is there actually serious consideration here. MR. SMITH: And what I'm getting at is if you're asking somebody if he considered a factor, which is specific, he should be asked in the correct words of the factor, as opposed to a paraphrasing that is skewed toward the person who is asking the question. JUDGE BOULDEN: Mr. Coon, when you considered the Douglas Factors, how is it that you considered them? Did you have a physical list of them? THE WITNESS: I had a copy of the Douglas Factors with me when I reviewed the file, when I reached my decision. JUDGE BOULDEN: Do we know if those are the same -- is there an exhibit that the Agency always uses or something? Diversified Reporting Services, Inc. 1025 VERMONT AVENUE. N.W. SUITE 1250 WASHINGTON. D C. 20005 (202) 296-2929 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 147 MR. SMITH: I cannot state that, your Honor. What I did was when I knew there was going to be an issue and in preparing for this, I went to the Douglas case and photocopied the two pages that set out the 12 factors. JUDGE BOULDEN: You didn't have a copy of the case in front of you, did you? THE WITNESS: No, I did not. I believe I had a copy of the fa«__ors. It may have been prepared by the Agency General Counsel or by the Department, but it was not from the case. JUDGE BOULDEN: Well, I think you can inquire on redirect, if you think that Mr. Costello has misstated something. MR. COSTELLO: Well, let me cut to the chase on this, Judge, so we don't prolong this. BY MR. COSTELLO: Q When you dictated your thoughts that were subsequently put into the order of dismissal, did you include a discussion of any or all of the Douglas Factors? A I believe I did, only highlighting those factors that I felt were relevant. Q Do you recall which ones you felt were relevant? Diversified Repnrtinq Services, Inc. 1025 VERMONT AVENUE, N.W. SUITE 1250 WASHINGTON, D.C. 20005 (202) 296-2929 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 148 A From memory, that the insubordination was willful. Also, the impact on the Agency and the impact on his supervisor. There may have one or two more, but I don't recall -- Q Do you did not consider the factor like his service record was relevant? A No. I considered that. I considered each and every factor, but when I gave my decision to Mr. McWhirter, I only highlighted those that I thought supported the proposed removal. Q Well, was there any one of the Douglas Factors, in your recollection at that time, that would have, in your view at that time, supported mitigation of this, or was this an all or nothing situation? A No. No, I don't think so. Because, in my. mind, he had two opportunities to attend the fitness for duty. The first one there was a question. I don't think it was totally supportable, but based on what was contained in the file, in my mind, I was willing to give him the benefit of the doubt for failing to appear for the first scheduled appointment but not the second. Inasmuch as this case appeared to have been Diversified Reportinq Services, Inc. 1025 VERMONT AVENUE. N.W. SUITE 1250 WASHINGTON, D.C. 20005 (202) 296-2929 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 dragging on for quite sometime, that's when I decided that I wanted to give him one more opportunity. Q All right. I'm somewhat confused now. We were discussing the Douglas Factors. You're saying based on your discussion of the Douglas mitigating factors you decided to offer the opportunity for another examination? I don't mean to put words in your mouth, but that was the context in which I heard it. A Yes. I would say so. When it came to the issue of willful, I do believe it was willful, but I wanted to afford him one more opportunity. Q Do you consider dismissal for insubordination to be a harsh penalty? A I think it is a very harsh penalty. Q Is there a harsher penalty the Service could impose on an employee? A No. MR. COSTELLO: That's all I have, Judge. JUDGE BOULDEN: All right. REDIRECT EXAMINATION BY MR. SMITH: Q Mr. Coon, you consider dismissal a harsh penalty? Diversified Hepartinq Services, Inc. 1025 VERMONT AVENUE, N.W. SUITE 1250 WASHINGTON, D C. 20005 (202) 296-2929 149 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 150 A I do. Q Do you consider it an inappropriate penalty in this case? A I do not. Q And why is that? A I believe that the Agency clearly provided direction and an order for Mr. Fogg to attend a fitness for duty which was in the prerogative of the Agency. He failed to meet that obligation on two occasions. The letter guiding him to the exam clearly stated that if he failed to appear there may be disciplinary actions taken against him. Q And why is removal from his job appropriate? A I believe that we can't send a message to our other personnel that they can dismiss and not fo? w direct orders. MR. SMITH: Thank you very much. MR. COSTELLO: May I ask a follow p questions? RECROSS EXAMINATION BY MR. COSTELLO: Q Speaking of messages you give the personnel, in considering this penalty, did you consider the message you were conveying to African American Deputy Marshals with this | Diversified_Repnrlinq Services, Inc. 1025 VERMONT AVENUE, N.W. SUITE 1250 WASHINGTON, D C. 20005 (202) 296-2929 nr\ i e- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 officials, from the Deputy Director and Director's office. So I was telling him if it's on that level there is no place I could go where somebody can't target me i'f they really want to get to me. That was that conversation what we were talking about. Q Okay. Well, you didn't say, "There was no place I want to report"? A I don't -- I don't recall saying there was no place I don't want to report. I don't recall saying those -- j Q But you told him there was no place you wanted to report in the Marshal Service? A I don't recall -- I don't recall that. I mean, I'm saying I don't recall saying it like that. But I mean, the gist of it was, once again, what I'm saying to you was I was saying to him there was no place in the Marshal Service that I can go where discrimination won't exist. We may be saying semantics with words here, but I mean, that was the issue. Q Okay. Now, on December 28, 1994, you received an order to report for a fitness for duty exam on January 4th; is that correct? A That's correct. Diversified Reportini] Services, Inc. 1025 VERMONT AVENUE. N.W. SUITE 1250 WASHINGTON. D C. 20005 (202) 296-2929 i 244 0016 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 245 Q And you read it? A Yes . Q You understood it? A Yes . Q You understood you were supposed to report at 8:30 the morning on January the 4th? A Yes . Q And you understood that on that - - that that dav was only for blood work and screening? If you like, I can show you a copy? A I didn't really -- to be honest with you, I just looked at it as being I'm being ordered to report for a physical. What they wanted to do it really wasn't -- I wasn't really in-depth into that. I just said, hey, they want -- I can understand they,want me to go take a physical, and that's understood. Q Okay. Now, you said that by now you're a very good documenter; you understood that you had to document everything that was important? A What I felt was or wasn't important. You're right. I was trying to make sure I could document everything I could. Diversified Reporlinq Services, Inc. 1025 VERMONT AVENUE. N.W. SUITE 1250 WASHINGTON, D C 20005 (202) 296-2929 /A — 84 FEP Cases 775IP. v. RANDOLPH LEWIS v. BABBITT ter an a take-lt-or- case on which the relies, Gilmer, also in- gotlated arbitration io pays" question pro se did not arise in Tiles that governed in -he New York Stock the standard practice '■try parties, arbitrate isp-'tes, to pay all of * ? Cole v. Bums . F.3d 1465, 1483 5, 1789] (CADC 1997). ■actioe, the Court of trlct of Columbia O r iented: uprcme Court endorsed on in which employees pay for the arbitrator heir statutory claims. 0 think that the Court 1 arbitration In the ab- wnent Indeed, we are then In American juris- benefldary of a federal tired to pay for the ser- Igned to hear her or his PEP Oases, at 1789]. Ill vet in this case pro- l of the rules under will proceed or the is likely to incur in Tree, drafter of the ve filled the void by vn hat arbitration 1 L ie rules of the ration Association AA’s Consumer Arbi- msumers in . small - incur no filing fee 15 of the total fees 'ltrator. All other fees paid by the business unerican Arbitration ms Curiae 15-16. Oth- ratton organizations nilar models for fair tion.’ It may be that «t States, courts Interpret a arbitration fees and costs) stem.” Green Tree Financial r . 740 8o2d 400. 415 (Ala. tent (Second) at Contracts (where an essential term is d supply a term which com- indards at fairness and poll- Chicago. Inc. v. Kaplan, 614 iris should generally apply pies when deciding whether » a certain matter); Mastro- m Hutton, Inc, 614 UJB. 52, crpretlng arbitration clause nd Illinois law). J Arbitration Forum provl- Ums consumer costs to be- a National Consumer Dis- * protocol recommending i limited to a reasonable ition Forum. Code of Proce- ule (July 1, 2000); National .aory Committee. Consumer ndpie 6. Comment (Apr. 17. g/education/educatlon/oon- i i: i 0 ' j in this case, as in Gilmer, there is a standard practice on arbitrators’ fees and expenses, one that fills the blank space in the arbitration agreement. Counsel for Green Tree offered a hint in that direction. See Tr. of Oral Arg. 26 (“Green Tree does pay [arbitration] costs in a lot of instances__ "). But there is no reliable indication in this record that Randolph’s claim will be arbitrated un der any consumer-protective fee a r rangement As a repeat player in the arbitration required by its form contract Green Tree has superior information about the cost to consumers of pursuing arbitra tion. Cf. Raleigh v. Illinois Dept, of Rev enue, 530 0 8 . 15,----- (2000) (slip op., at 5) (“the very fact that the burden of proof has often been placed on the tax payer (to disprove tax liability] . . . re flects se"“~'<i compelling rationales . . . (including] the taxpayer’s readier access to the relevant information”); 9 J. Wig- more, Evidence §2486 (J. Chadboum rev. ed. 1981) (where fairness so requires, bur den of proof of a particular fact may be assigned to “party who presumably has peculiar means of knowledge” of the fact); Restatement (Second) of Contracts §206 (1979) (“In choosing among the rea sonable meanings of . . . (an) agreement or a term thereof, that meaning is gener ally preferred which operates against the (drafting) p a r ty ----”). In these cir cumstances, it is hardly clear th a t Ran dolph should bear the burden of demon strating up front the arbitral forum’s inaccessibility, or that she should be re quired to submit to arbitration without knowing how much it will cost her. As I see it, the Court has reached out prematurely to resolve the m atter in the lender’s favor. If Green Tree’s practice under the form contract with retail in stallment sales purchasers resembles that of the employer in Gilmer, Ran dolph would be insulated from prohibi tive costs. And if the arbitral forum were in this case financially accessible to Randolph, there would be no occasion to reach the decision today rendered by the Court Before writing a term into the form contract as the District of Colum bia Circuit did, see Cole, 105 F.3d, a t 1485 (72 FEP Cases, a t 1791],’ or leaving cost allocation initially to each arbitrator, as thffCourt does, I would remand for clari fication of Green Tree’s practice. - . The Court’s opinion, if I comprehend it correctly, does not prevent Randolph from returning to court, post-arbitra tion, if she then has a complaint about V V ,The court Interpreted a form contract to arbi trate employment disputes, silent as to costs to re quire the employer "to pay all of the arbitrator’s fees necessary for a full and fair resolution of Ithe dis charged employee’s! statutory claims” 105 F.3d, at 1485 172 FEP Oases, at 17911. cost allocation. If tha t is so, the issue reduces to when, not whether, she can be spared from payment of excessive costs. Neither certainty nor judicial economy is served by leaving tha t issue unsettled until the end of the line. For the reasons stated, I dissent from the Court’s reversal of the Eleventh Cir cuit’s decision on the cost question. I would instead vacate and remand for further consideration of the accessibility of the arbitral forum to Randolph." LEWIS v. BABBITT IJ.S. District Court, Eastern District of Pennsylvania KEVIN LEWIS, Plaintiff v. BRUCE BABBITT, Secretary, Departm ent of the Interior, Defendant, No. 97-CV- 7576, June 10, 1999 CIVIL RIGHTS ACT OF 1964 1. Federal employment — Attorneys’ fees — Rate >’108.8926 >110.8901 Reasonable rate for attorney who suc cessfully represented National Park Ser vice employee is $250 per hour, despite contention that attorney is not leading employment discrimination attorney, where affidavits from both her and non- party attorneys attest that rates submit ted are consistent with area market rates, she lias demonstrated significant legal experience both in and out of civil rights field, and she achieved near re markable result in that evidence of pe cuniary damages was limited and em ployee was awarded in excess of evidence of lost wages presented at trial; however, because she has handled most of this case as solo practitioner, there are in stances in which tasks billed could be reasonably billed a t lower rate, and rea sonable rate for these services would be $150.00, which is hourly rate of mid-level associate in market for fifth- or sixth- year attorney. 4 4 Randolph alternatively urges affirmance on the ground that the arbitration agreement is unenforce able because It precludes pursuit of her statutory claim as a class action. But cf. Johnson v. West Suburban Bank, 225 F.3d 366 (CA3 2000) (holding arbitration clause in short-term loan agreement en forceable even though It may render class action to pursue statutory claims unavailable). The class-fic tion issue was properly raised in the District Court and the Court of Appeals. I do not read the Court’s opinion to preclude resolution at that question now by the Eleventh Circuit Nothing Randolph has so far done in seeking protection against prohibitive costs forfeits her right to a judicial determination whether her claim may proceed either In court or arbitration as a class action. O A r. 84 FEP Cases 776 LEWIS v. BABBITT LEWI 2* Federal employment — Attorneys* fees — Honrs >108.8927 >110.8901 Number of hours claimed by attorney for National Park Service for prepara tion of fee petition seems excessive, where petition relies on well-settled law, and main exhibit, which was record of hours spent, was prepared on ongoing basis by attorney. 3. Federal employment — Reinstate ment >110.901 >220.401 National Park Service employee who was transferred from law-enforcement position to Interpretation division In re taliation for filing discrimination com plaints will not be reinstated to that po sition, even though he will suffer limited loss of front pay If he remains In present position, where Park Service could legiti mately find that he abused his position as law-enforcement ofllcer In two off- duty incidents and that It could legiti mately believe that there was problem with him that needed to be addressed, and It followed clear policy In not plac ing him back In law-enforcement posi tion because he violated policy by refus ing to undergo psychological evaluation. 4. Federal employment — Front pay >110.910 >208.01 >225.071 National Park Service employee who was transferred from law-enforcement position In retaliation for filing dis crimination complaints but who Is not entitled to be reinstated to such position will be compensated for lost forced over time by being promoted to pay level that would compensate him for lost an nual overtime. 5. Federal employment — Retire ment benefits >110.910 >225.701 National Park Service employee who was transferred from law-enforcement position In retaliation for filing discrimi nation complaints has failed to show that he lost retirement benefits, despite contention that law-enforcement pen sion would allow him to retire a t end of 20 years, rather than 30 years as under his present retirement ■ plan, where he would not have been old enough to retire after 20 years under law-enforcement re tirement plan, and he was unable to explain why he would receive credit for work In Air Force and for Veteran’s Ad ministration In law enforcement but not for his current position. Application for attorneys’ fees and equitable relief following 80 FEP Cases 55. Fees awarded; relief denied. Faye R. Cohen (Cohen and Cohen Associates), Philadelphia, Pa., for plaintiff. Stephen J. Britt and James G. Shee han, Assistant U.S. Attorneys for the Eastern District of Pennsylvania, for defendant. Full Text of Opinion JAMES M. KELLY, District Judge' — Plaintiff, Kevin Lev'4' (“Lewis”), pre^ vailed a t trial on his claim of retaliation for exercising his Title VH rights and was awarded $85,000.00 by a Jury. Lewis now requests an award of reasonable attorney’s fees and equitable relief to make him whole. The Court held oral argument and an evidentiary hearing on Plaintiff’s Motions. I. B A C K G R O U N D Defendant, Bruce Babbitt, was sued In his official capacity as Secretary of the Interior. The National Park Service ("Park Service”) Is part of the Depart ment of the Interior. Lewis was hired as a law enforcement Park Ranger In March 1992. Lewis works a t Indepen dence N a tio n al H isto rica l P a rk (“INHP”) In Philadelphia. Lewis had filed EEO complaints, based upon his race, In which he alleged that he had been denied training and a promotion. On May 24, 1995, Lewis was working on the midnight shift with his supervi sor, Michael Dumene ("Dumene”), and an altercation took place between them. Lewis followed up with a report on the Assistant Chief Ranger’s desk the next morning. Lewis expressed concern for his personal safety and commented th a t both he and Dumene were armed dure lng the confrontation. The complaint was forwarded to Dumene. Lewis pro ceeded up his chain of command with his complaint against Dumene, but re ceived no change In his assignment Lewis attempted to leam from the De partm ent of the Interior what addition al steps were available to him, but he received no additional information. Lewis then filed an EEO complaint Immediately thereafter, Patrick Bow man removed Lewis’ weapon and cre dentials and Lewis was assigned to ad ministrative duty. Lewis was removed from his position as fitness coordinator. On August 10, 1995, Lewis went be fore a Board of Review tha t recom mended his law enforcement commis sion be suspended for two years and he be transferred to another division. On October 15, 1995, Lewis’ law enforce ment commission was suspended per manently and he was transferred to Historical Division, Interpretation. In the Interpretation division, Lewis con tinues to serve as a Ranger, but Is no longer Involved In law enforcement II . D ISC U SSIO N Title v n prohibits an employer from discriminating against an employee “be- 3 ) cause i “ an u r “ this su a char ed In a under §2000e In this reason. §2000e- » 188.5 b ® attome 4 ‘ and 83 clerk ’ The tc and $1. Reas “The the bur reasons F.2d 11 lng par fee wit) ton Prc Clr. 198 fee am. party o ' “v. howeve; \ i discrete i light of a t 1183 "The determi fee Is tl expende a reasoi U.S. a t "lodes ta reasonal U m “(a la ted act rates In delphia i Cir. 199’. ted afflc party at submltte rates In ( em inent rates as 1 billed by criminat level to prepared demons ti lenoe bot field. The lae Cohei she chost from whs dlUonai Itachieved that evldt r\ r\ LEWIS v. BABBITT LEWIS v. BABBITT 84 FEP Cases 777 rltt and James G. 8hee- UJS. Attorneys for the d, of Pennsylvania, for 'ext of Opinion ■CKLI.Y, District Judge: vln Lewis ("Lewis”), pre- n his claim of retaliation his Title VII rights and If 00 by a Jury. Lewis ii. ^ard of reasonable and equitable relief to >le. The Court held oral an evidentiary hearing lotions. iC K G R O U N D truce Babbitt, was sued In ad ty as Secretary of the National Park Service ”) Is part of the Depart- terior. Lewis was hired as ament Park Ranger In jewis works a t Indepen- >nal H isto rica l P ark Philadelphia- Lewis had a plaints, based upon his i he alleged tha t he had alnlng and a promotion. 1995, Lewis was working h t shift with his supervl- )umene (“Dumene”), and took place between them. 1 v v ith a report on the jf ger's desk the next is .^pressed concern for ifety and commented th a t Dumene were armed dur- ontatlon. The complaint d to Dumene. Lewis pro- . chain of command with against Dumene, but re- ange In his assignment, ted to leam from the De- he Interior what addition- available to him, but he additional information, ed an EEO complaint v thereafter, Patrick Bow- 1 Lewis’ weapon and cre- Lewls was assigned to ad- duty. Lewis was removed tlon as fitness coordinator. 10, 1995, Lewis went be- 1 of Review tha t recom- law enforcement oommls- nded for two years and he d to another division. On 1995, Lewis’ law enforce- sslon was suspended per- ld he was transferred to 1 vision, Interpretation. In atlon division, Lewis con- ve as a Ranger, but Is no ed In law enforcement . D ISC U SSIO N prohibits an employer from ig against an employee “be- I cause he has opposed any practice made an unlawful employment practice oy this subchapter, or because he has made a charge, testified, assisted, or participat ed In any manner In an Investigation under this subchapter. 42 OAC. §2000e-3(a) (1994). As a prevailing party In this litigation, Lewis Is entitled to hlte reasonable attorney’s fees and costs, id. §2000e-5(k). Lewis has petitioned for 188.5 hours at $250.00 per hour for his attorney, Faye Riva Oohen ( Cohen ) and 83.5 hours a t $80.00 per hour for law clerk Thomas Camey Jr- ( C arney l The total request Is $53,805.00 In fees and $1,591.11 In expenses. Reasonable Attorneys’ Fees and Costs ? ~\ A. Attorneys’ Fees ) o D va-i J • xne party seeking attorneys’ fees has the burden to prove that its request. Is reasonable.” Rode v. DeUaciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). The oppos- Irifir party must challenge the requested fee with specificity. Bell v. [/nded Prince ton Properties, 884 F.2d 713, 719-20 (3d Cir. 1989). The court may not reduce the fee amount sua sponte. Id. Once tiie party opposing the fee request objects, however, the court "has a great deal of discretion to adjust the fee a v jrd bi light of those objections. Rode,892 F.2d at 1183 (citing Bell, 884 F.2d a t 721). "The most useful starting point for determining the amount of a reasonable fee Is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly ra te /’ Hensley, 461 U £. a t 433. The result, known as the ‘lodestar,” Is presumed to represent a reasonable award of attorney s fees. id. 1 1. Hourly Rates (11 “(A] reasonable hourly rate Is calcu lated according to the prevailing market rates In the community.” Sm ith v. Phila delphia Hous. Avth., 107 F.3d 223, 225 (3d Cir 1997). Defendants’ counsel submit ted affidavits In which she and non- party attorneys attested tha t the rates submitted are consistent with market rates In the Philadelphia area. The Gov ernment objects to the claimed hourly rates as being representative of the rates billed by the leading employment dis crimination attorneys In the market, a level to which the Government Is not prepared to elevate Cohen. Oohen has demonstrated significant legal Exper ience both In and out of the civil rights field. The Court is not prepared to penal ize Oohen In this Pee Petition because she chose a career path that diverges from what was once considered the tra ditional legal career. In this case, she has achieved a near remarkable result in tha t evidence of pecuniary damages was limited and Lewis was awarded In excess of the evidence of lost wages presented at trial. Accordingly, $250.00 per hour Is a reasonable rate In tbis case for Oohen s legal services performed a t a high level of litigation. . . Cohen, however, has handled most of this case as a solo practitioner. Upon reviewing the services performed by Oo hen it appears tha t there are Instances where tasks billed could be reasonably billed a t a lower rate. A reasonable rate for these services would be $150.00, the hourly rate of a mid-level associate in the market, or the approximate rate billed by Community Legal Services, Inc for a fifth or sixth year attorney. The Court finds that the following hours are properly billed a t a mid level associ ate rate: 7.8 hours to draft and serve a complaint; 1.5 hours to Index an Investi gative file; 2.0 hours to research Infor mation for subpoenas; 8.0 hours related to preparation of the pre-trial memoran dum; 3.0 hours for preparation and fil ing of a sealed request for attorney fees; 9.0 hours for responding to a motion for summary Judgment; 6.0 hours for pre paring exhibits for trial and 18.0 hours for preparation of a fee petition. Accord ingly, 55.3 of Cohen’s hours are reason ably billed a t $150.00 per hour. 2. Hours Expended [21A party Is entitled to compensation for work tha t Is “useful and of a type ordinarily necessary to secure the final result obtained.” Pennsylvania v. D&a- ware Valley Citizens’ Council, 478 UB. 546, 561 (1986). “Hours are not reason ably expended if they are excessive, re dundant, or otherwise unnecessary. Hensley v. Eckerhart, 461 U.S. 424,433 [31 FEP Cases 11691 (1983) Defendant has not challenged the number of hours claimed by Lewis except for the number of hours claimed to prepare the fee peti tion Lewis claims 39.0 hours for the fee petition. Including 20.0 hours for Cohen and 19.0 hours for Camey. The number of hours requested for the fee petition seems excessive to the Court. The fee petition relies upon well settled law and the main exhibit, the record of hours spent, has been prepared on an ongoing basis by Lewis’ attorney. Given the need to prepare the Motion, Memorandum of Law and affidavit, as well as contact attorneys for affidavits supporting her hourly rate, the Court believes tha t 2.0 partner hours, 8.0 associate hours and 19.0 law clerk hours are reasonable for preparation of the fee petition. The Court Is otherwise Impressed by the rear sonableness of the number of hours claimed. Accordingly, the Court accepts the number of hours expended as piflimpd by Lewis, less ten hours for the fee petition. r\r\̂ r\ TS v. BABBITT SCHNABEL v. ABRAMSON 84 FEP Cases 779 nent position.1 As elleves that It is . * to design alter- , ewls whole. >n these Motions, e received a law >al In his salary, - y. Lewis was not differential, nor >uree for such a „ Is not convinced « J e^sts and shall & n equitable ‘n>- . lewis was 2d overtime. The evidence that last law enforcement ■ $700 to $2,000. el Is GS9-5, with 38,289. The Gov- v the Court agrees Is to G69-8, with > 1,668 would corn- lost annual over- iw enforcement, d be made effec- iod following the s matter, October that In law en- orked on Sunday in day ppy dlffer- however, that In received a Sun- ^ X 3oes not work all f on because there ocess. The Court l e 's’ salary to re pay dlffer- rav _.e is not re- days, he receives jf those days off. he has lost other o Interpretation. aw enforcement n to retire at the / "9k ther t. in thirty ^rem plan. It 1aw e* ['cement er pe ntage of also ■ar that >thet ly reach >roem d service, nouy *o retire retii ant pro- ! ye? old and >ty y of law il h» years e to equately - lurv > have found for the Ltourt to And werna about Lewis’ ■ffloer The Jury may Ident with Dumene, via" law enforcement dilatory. Retaliation actor In the adverse lain tig. Woodson v. - [73 FEP Cases 1237] 141 118 8.CL 299 [74 1 ' I explain why he would receive credit for work In the Air Force and for the Veter an’s Administration in law enforcement, but not In Interpretation. Accordingly, Lewis did not prove that he lost a retire ment benefit. Lewis also suggested that If he remained In law enforcement, he would have received a promotion. This Is p u r e sp e c u la t io n a n d s h a ll__h o t Be groundsTorfurther equitable relief. Fi nally, Lewltra rgued for reimbursement for time lost to pursue this action. Evi dence of his lost time was before the Jury and the Court Is convinced that such lost pay entered into their calculation of damages. ................. - ....... in. C O N C L U S I O N Lewis has demonstrated th a t he is en titled to $48,366.11 in attorney fees and costs. In order to make Lewis whole, he shall be promoted to the level of GS9-8. Order 1 ___f AND NOW, this 10th day of June, 1999, upon consideration of the Motion for Attorney Fees, Costs and Expenses (Doc. No. 24) and the Motion for Equita ble Relief (Doc. No. 24) of Plaintiff, Ke vin Lewis, the Responses thereto of De fendant, Bruce Babbitt, and after oral argument and an evidentiary hearing, it Is OR.PKK.ki >‘ 1. The Motion for Attorney Fees, Costs and Expenses Is GRANTED. Judgment is ENTERED in favor of Plaintiff, Kevin Lewis, and against De fendant, Bruce Babbitt In the amount of $48,366.11. 2. The Motion for Equitable Relief is GRANTED IN PART. Defendant, Bruce Babbitt shall promote Plaintiff, Kevin Lewis, to pay level GS9-8, effec tive the first pay period following Octo ber 29, 1998. 3. The Motion for Equitable Relief Is DENIED IN F ’ RT. Lewis shall not be reinstated to a w enforcement position. SCHNABE . ABRAMSON U.S. urt of Appeals, f ->nd Circuit PHILIP H SCHNABEL, Plaintiff- Appellant v. IARY ABRAMSON and LEGAL AID SOCIETY OF ORANGE COUNTY, I •JC., Defendants-Appel lees, No. 99-9:185, November 8, 2000 AGE DISCRIMINATION IN EM PLOYMENT ACT I. Discharge ►106.13273 ►106.134001 Discharged protected-age employee who was qualified to be employed by legal aid society as investigator because of his extensive law-enforcement exper ience made out prima facie case by showing tha t his replacement was 31 years old. 2. Discharge ►106.13275 ►106.134001 Legal aid society tha t discharged pro tected-age Investigator rebutted his prima facie case by explaining that he was discharged because of his asserted contempt for legal aid clients, difficulty following instruction. Insubordination, and inept performance. 3. Discharge ►106.13278 ►106.134001 Jury could not conclude that employ er’s stated reasons for discharging pro- tected-age employee were pretextual, even if Jury were to find that his letter asserting that supervisor admitted that he “had no complaints” about employ ee’s work and stated that he was pre pared to “compose a letter claiming that [employee] was fired for cause and place It in [his] file. If [he] refused to resign’’ accurately reflected supervisor’s com ments, since he has offered no evidence that he was discriminated against be cause of his age. 4. Discharge ►106.134001 ►108.7209 Summary judgment was properly granted to employer that discharged protected-age Investigative employee, where he presented no evidence on which reasonable trier of fact could base conclusion that age was determinative factor In discharge decision; he does not contend that his age was discussed by supervisor and employer’s board in de liberations over supervisor’s desire to re- hlre younger former employee or even by supervisor In explaining decision to employee, he has not offered any evi dence that he was subjected to any age- related comments or criticisms on job, he was discharged by same person who had hired him three years earlier when he was already 60 years old, and he was replaced by person whom he originally had replaced after employer compared their performances and found that fore mer employee was better Investigator than him. Appeal from the U.S. District Court for the Southern District of New York (McMahon, J.). Affirmed. Michael H. Sussman (Stephen Berg- stein, on brief), Goshen, N.Y., for appel lant. Eric C. S tu a rt (Hedinger & Lawless, L.L.C.), New York, N.Y., for appellees. Before MINER and McLAUGHLIN, Senior Circuit Judges, and CA- BRANES, Circuit Judge. CERTIFICATE OF COMPLIANCE WITH FED.R.APP.P. 32(A)(7)(B) I hereby certify that the foregoing brief (including footnotes, but excluding the table of contents, table of authorities, glossary, supplemental appendix, and certificates of THIS IS TO CERTIFY that lwo copies of the foregoing Appellee's Brief was mailed, postage prepaid to: Frank J. Costello Scott M. Zimmerman Zuckert, Scoutt & Rasenberger, LLP 888 17th Street, N.W., Suite 600 Washington, D.C. 20006 Elaine R. Jones Theodore M. Shaw Norman J. Chachkin Charles Stephen Ralston Elise C. Boddie NAACP Legal Defense and Education Fund, Inc. 99 Hudson Street, Suite 1600 New York, NY 10013 this 4th day of January, 2001. counsel) contains 13,839 words CERTIFICATE OF SERVICE torney ooo 4th Street, N.W., 10th Floor Washington, D.C. 20001 (202) 307-0492