Fogg v. Reno Brief for Appellee

    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

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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

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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.

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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.

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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

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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

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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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117
Q Was there a dissention or discussion on it?

A No. There was no dissention. I mean, we were all 
in agreement with respect to that case.

Q And why did the panel recommend -- well, first of 
all, what did the panel recommend?

A The panel recommended removal.
Q And why did the panel recommend removal?

A Basea on the facts as we had them presented to us, 

the fact that he was instructed to take his fit for duty 

examination for purposes of seeing whether or not he could 
come back to work, and he -- according to the facts, he did 
not do that.

So that was failing to follow instructions, so we 
have no option but removal in that instance.

1 Is it that you have no option or --

When I say we have no options, the penalty can 
ran' from reprimand to removal, but the panel feels so 

str ~?y about it being removal that that's what we chose to 
do.

Q Did the Director of the Marshal Service ever 

suggest to you how you should decide the Matthew Fogg case?

A No. I had no discussions with the Director.

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127
Douglas mitigating factors?

A I'm not familiar with what that is.

Q Let me ask you specifically did you give

consideration to whether the offense was malicious or for
gain?

A Well, the fact that he was ordered to go and he di'd
not go, and then there was a second fitness for duty

scheduled, and he didn't appear for that one, that was the 

only facts that we had. We didn't have any facts as to why 
he did not go.

Q Did you consider his service record?
A Yes .

Q Did you consider the fact that he had a good
service record?

A Well, we really wouldn't have known, you know, with
respect to how good his record was. I mean, the fact sheets
that we got I believe did not address that issue at all.

Q Did you consider any mitigating circumstances such
as unusual tensions, mental impairment, personality problems, 
mental impairment or harassment?

A The only discussion we had was the fact that he had 

been off work, I believe it was, sometime since 1993. The

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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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147
MR. SMITH: I cannot state that, your Honor. What

I did was when I knew there was going to be an issue and in 

preparing for this, I went to the Douglas case and 

photocopied the two pages that set out the 12 factors.

JUDGE BOULDEN: You didn't have a copy of the case
in front of you, did you?

THE WITNESS: No, I did not. I believe I had a

copy of the fa«__ors. It may have been prepared by the Agency 

General Counsel or by the Department, but it was not from the 
case.

JUDGE BOULDEN: Well, I think you can inquire on

redirect, if you think that Mr. Costello has misstated 
something.

MR. COSTELLO: Well, let me cut to the chase on
this, Judge, so we don't prolong this.

BY MR. COSTELLO:

Q When you dictated your thoughts that were 

subsequently put into the order of dismissal, did you include 
a discussion of any or all of the Douglas Factors?

A I believe I did, only highlighting those factors 
that I felt were relevant.

Q Do you recall which ones you felt were relevant?

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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

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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

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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