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November 8, 1994

DIAN L. CASTLE, Plaintiff,
LLOYD M. BENTSEN, Secretary of the Department of Treasury, Defendant.

The opinion of the court was delivered by: CHARLES R. RICHEY



 Before the Court at this time are the parties' respective Proposed Findings of Fact and Conclusions of Law on the issue of equitable relief for the Plaintiff in the above-captioned case. Also before the Court is the Defendant's Motion for Reconsideration of the Court's ruling that evidence of the Plaintiff's employment with the Texas Department of Mental Health and Retardation is not admissible as evidence of the Plaintiff's failure to mitigate damages.

 Because the Court finds that the Plaintiff is only entitled to backpay until September 30, 1992, the date upon which the Defendant discovered evidence of the Plaintiff's plagiarism of the book entitled The Coach and other on-the-job training materials, the Court, as counsel for both parties suggested at the hearing on November 7, 1994, need not reach the issues raised in the Defendant's Motion. Accordingly, said Motion shall be declared Moot.

 What follows shall constitute the Court's findings of fact and conclusions of law on the issue of equitable relief, as required by Rule 52 (a) of the Federal Rules of Civil Procedure.


 The Plaintiff, Dian L. Castle, was employed with the Office of the Comptroller of the Currency ("OCC") from February 11, 1991 to January 10, 1992, on which date she was terminated during her probationary period. Tr. Exh. 19. On December 30, 1993, the Plaintiff filed a Complaint alleging, in pertinent part, intentional discrimination on the basis of her sex and retaliation under Title VII of the Civil Rights Act of 1964, as amended in 1991, 42 U.S.C. ยง 2000e-2 et seq. A jury trial was held on these two claims and, on November 4, 1994, the jury returned a verdict finding that the Plaintiff had proved, by a preponderance of the evidence, each element of her claim of sex discrimination, but found that the Plaintiff had not proved her retaliation claim. The jury awarded the Plaintiff $ 75,000 in compensatory damages for emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life.

 On November 4, 1994, counsel for both parties entered into an oral stipulation that any and all unresolved issues concerning backpay, front pay and reinstatement shall be committed to the sole and sound discretion of the Court, sitting without a jury, to be determined on the basis of the entire record. On November 7, 1994, a hearing was held on the issue of the Plaintiff's entitlement to such equitable relief.

 Included in the trial record now before the Court is evidence presented by the Defendant which shows that, after the Plaintiff's discharge, the OCC learned that the Plaintiff had engaged in misconduct which would have led to her termination had the Defendant known of such evidence at the time of the Plaintiff's employment. In particular, the Defendant submitted evidence that the Plaintiff made misrepresentations on her Form 171, or initial application for employment at the OCC, *fn1" and that the Plaintiff plagiarized the book The Coach, as well as other on-the-job training ("OJT") materials, in violation of the copyright laws of the United States.

 It is undisputed that, during her employment with the OCC, the Plaintiff produced a training video script for distribution within the OCC. The OCC hired actors and turned the script into a video, then made copies which were sent to all district personnel for use as a teaching aid for bank examiners. Tr. Test. of Gary Norton at 48. In September of 1992, another employee in the Office of Training and Personnel Development, Gwyn Robson, discovered that major portions of the video script were copied, nearly verbatim, by the Plaintiff from a published book entitled The Coach, by Steven J. Stowell and Matt M. Starcevich. See Id. at 48-49. The OCC therefore showed the script to their Law Department out of concern that, if the agency used copyrighted information, it could be subject to some penalty by the true authors. Id. at 49. The OCC's Law Department determined that the material was plagiarized. Id. Accordingly, the OCC pulled all the videos and asked its managers not to use them as a training aid. Id.

 In presenting the video script to the OCC, the Plaintiff failed to attribute its contents to the true authors, but instead asserted that she had written the story herself, and accepted praise for the script from other OCC employees. Tr. Test. of Gary Norton at 48; Tr. Exh. 62, 63, 65; Tr. Test. of Gwyn Robson (Decl. at P 5).

 During her employment with the Defendant, the Plaintiff also produced an OJT aid for distribution within the agency. Tr. Test. of Dian L. Castle (Decl. at 21); Tr. Exh. 61. In September of 1992, Gwyn Robson also discovered that Dian Castle had copied major portions of these materials from training materials authored by J. H. Harliss and by Jeffrey Nelson Associates; even the page numbers of the original materials remained the same. Tr. Test. of Gwyn Robson (Decl. at P 4). Ms. Castle testified that she attached a bibliography to these materials. Tr. Test. of Dian L. Castle. However, the original training materials indicate on their face that such materials may not be reproduced without permission from the authors. Tr. Exh. 59-60. There is no evidence indicating that Ms. Castle obtained such permission. See Tr. Exh. 61.

 In September of 1992, the OCC determined that the Plaintiff had plagiarized large portions of her work. Tr. Test. of Gwyn Robson (Decl. at P 2); Tr. Test. of Gary Norton at 48-49. If Ms. Castle had still been employed by the OCC at the time the OCC discovered that she had plagiarized portions of her work, the OCC would have dismissed her, based on the plagiarism. *fn2"

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