Fogg v. Reno Brief for Appellee
Public Court Documents
January 4, 2001
Cite this item
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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 November 23, 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.
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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.
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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.
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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
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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
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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
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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.
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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.
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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
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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
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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
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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?
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was that that you had?
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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.
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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.
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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?
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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
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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?
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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?
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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
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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
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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
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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
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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