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HAYES v. SHALALA

July 11, 1996

JOHN B. HAYES, Plaintiff,
v.
DONNA SHALALA, Defendant.



The opinion of the court was delivered by: FRIEDMAN

 After a trial before a jury over a seven-day period beginning on November 29, 1995, the jury returned a verdict in favor of plaintiff John Blair Hayes, finding by a preponderance of the evidence that (1) he was denied a promotion to a position for which he was qualified by virtue of the defendant's intentional discrimination against him because of his race; (2) that he was denied a promotion to a position for which he was qualified because of the defendant's intentional retaliation against him because of his prior EEO activity; and (3) that thereafter the person who was appointed to the job for which he had applied, Barbara Twombly, intentionally retaliated against him because of his prior EEO complaint regarding his non-selection for the position. The jury awarded plaintiff $ 50,000 on each of these three claims, and the Court entered judgment on the verdict for plaintiff in the amount of $ 150,000, together with costs.

 The matter is now before the Court on plaintiff's motion for an award of equitable relief and attorneys' fees. Plaintiff argues that in addition to the compensatory damages awarded by the jury, Title VII requires the Court to provide plaintiff with the following equitable relief: (1) retroactive appointment to the position of Director of the Division of Acquisition Management; (2) retroactive promotion to the GS-15 level at an appropriate step within that grade; (3) full back pay (with interest) and other benefits; (4) re-crediting of both annual leave and sick leave, amounting to approximately 850 hours; (5) back pay for a week of leave without pay (with interest); (6) an injunction prohibiting the Department of Health and Human Services from discriminating against plaintiff because of his race and from retaliating against him because of his successful litigation in this matter; (7) an award of the costs of bringing these actions and the related administrative claims, including reasonable attorneys' fees; and (8) an order directing the defendant to correct its records to reflect the jury's verdict and the equitable relief provided by the Court.

 DISCUSSION

 Title VII entitles individuals to be "[made] whole for injuries suffered on account of unlawful employment discrimination." Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 45 L. Ed. 2d 280, 95 S. Ct. 2362 (1975). In order to effectuate this purpose, "Congress took care to arm the courts with full equitable powers" so that the injured party may be "placed, as near as may be, in the situation he [or she] would have occupied if the wrong had not been committed." Id. at 418-19; see Lander v. Lujan, 281 U.S. App. D.C. 140, 888 F.2d 153, 156 (D.C. Cir. 1989). The district court has "considerable discretion" in choosing the method or methods of redress, Lander v. Lujan, 888 F.2d at 156; see McKenzie v. Sawyer, 221 U.S. App. D.C. 288, 684 F.2d 62, 75 (D.C. Cir. 1982), although this discretion is to be exercised "in light of the large objectives of [Title VII]." Albemarle Paper Co. v. Moody, 422 U.S. at 416.

 A. Retroactive Appointment, Promotion and Back Pay

 Plaintiff seeks appointment as Director of the Division of Acquisition Management, the position for which the jury found that he was qualified but was denied appointment because of intentional discrimination on the basis of race and because of intentional retaliation against him because of his prior EEO activity. As plaintiff points out, the Special Verdict Form demonstrates that the jury expressly and specifically concluded that plaintiff would have been selected as Director of the Division of Acquisition Management absent such racial discrimination and reprisal.

 The government argues against this form of equitable relief. It maintains that to make plaintiff the head of the Division would be "severely detrimental" and would undermine the ability of the Division to operate effectively because of the "already unfortunate relationship plaintiff has established with his colleagues." The government maintains that "given plaintiff's disrespectful and uncooperative attitude, his placement in this position would seriously undermine the Division's morale and potentially paralyze its ability to operate." Plaintiff responds that any evidence concerning Mr. Hayes' disrespectful and uncooperative attitude and his potential to create a morale problem should be disregarded because the jury disbelieved the witnesses who testified about plaintiff's shortcomings and uncooperative attitude.

 "Title VII envisioned that making a victim whole would include his reinstatement to the position he would have held but for the discrimination." Lander v. Lujan, 888 F.2d at 156. 42 U.S.C. § 2000e-5(g) specifically includes reinstatement as an appropriate judicial remedy; indeed, "reinstatement is the preferred remedy in the absence of special circumstances militating against it." Squires v. Bonser, 54 F.3d 168, 173 (3d Cir. 1995). Although there is evidence of prior antagonism between plaintiff and the individuals with whom he would have to work, defendant may not justify denying plaintiff the promotion based on hostility engendered by the employer's own acts of discrimination or by this litigation itself. See Lander v. Lujan, 888 F.2d at 158. *fn1" Since the jury concluded that plaintiff was qualified for and should have been selected for the job and that he was denied it only because of illegal discrimination and retaliation, plaintiff should not be further penalized for the workplace discord that may have arisen from defendant's own discriminatory activity. The Court must assume that, if awarded the job, plaintiff will carry out his responsibilities professionally and without rancor and that plaintiff and defendant alike will actively seek to promote and sustain the sort of respectful workplace relationships envisioned by Title VII itself.

 As for the fact that retroactively appointing plaintiff to the position of Division Director would "bump" Barbara Twombly, who currently is "acting" in that position, the District of Columbia Circuit has indicated that bumping is authorized and appropriate in precisely the kind of situation presented by this case. Lander v. Lujan, 888 F.2d at 156-58. For these reasons, the Court will order the retroactive appointment of plaintiff to the position of Director of the Division of Acquisition Management.

 The parties also are in agreement that, in view of the jury's verdict, plaintiff is entitled to back pay and other benefits, with interest, for the pay differential between what he earned as a GS-14, Step 10, and a GS-15, Step 6, and that he should receive the appropriate bonuses and step increases, if any, attendant with the promotion to Division Director. The only point of disagreement is whether plaintiff's benefits should be calculated based on the assumption that he would have performed at the "outstanding" level as Division Director or only at a "fully successful" level, his most recent performance rating. Because plaintiff has never been a Division Director, there is no direct evidence about how plaintiff would have performed in that position. There is evidence, however, that his most recent performance evaluation was only a "fully successful" rating, and plaintiff testified at trial that he did not contest this rating. Based on the trial testimony, the Court concludes that it would be more appropriate to calculate plaintiff's back pay and other benefits as if plaintiff had received a "fully successful" rating rather than an "outstanding" rating. Thus, the back pay and benefits shall be calculated as if he had received a "fully successful" rating from August 10, 1992 until the present time.

 B. Recrediting Annual Leave and Sick Leave

 Plaintiff argues that Mr. Hayes was forced to use both sick leave and annual leave "to get treatment and to maintain his equilibrium" because of the "retaliatory campaign" waged against him by Barbara Twombly. He maintains that he was forced to use 405.5 hours of sick leave and 447.8 hours of annual leave between March of 1993, when the "retaliatory campaign against him seems to have started," and the trial of this case that began on November 29, 1995. He also argues that because of this retaliatory treatment he was "forced to conserve what little leave he had left" and thus took 40 hours of leave without pay in order to take his sons on vacation. He therefore seeks payment for this week of leave without pay, in addition to the re-crediting of annual and sick leave. All of these requests are premised on the jury ...


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