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Farrington v. Johnson

United States District Court, District of Columbia

September 11, 2016

SYLVIA E. FARRINGTON, Plaintiff,
v.
JEH JOHNSON, Secretary, U.S. Department of Homeland Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          RANDOLPH D. MOSS United States District Judge.

         In September 2008, an Administrative Judge (“AJ”) of the Equal Employment Opportunity Commission (“EEOC”) found that the Federal Emergency Management Agency (“FEMA”) discriminated and retaliated against Sylvia Farrington in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Among other relief, the AJ awarded Farrington backpay. The AJ's decision was then affirmed by the EEOC in various administrative orders. Most recently, in July 2013, the EEOC granted Farrington's petition for enforcement and ordered that FEMA (1) “conduct a supplemental investigation” of how “it calculated the backpay it estimated was owed to” Farrington; (2) “modify [those] calculations to cover pay lost through July 11, 2011;” (3) “provide additional payments as necessary;” and (4) provide the EEOC with a compliance report, documentation supporting FEMA's calculations, and “evidence of prior payments” that FEMA provided to Farrington. Dkt. 16-7 at 6.

         Farrington brings this action under the Administrative Procedure Act (“APA”), 5 U.S.C. 706(1), seeking to compel FEMA's compliance with the EEOC's back-pay orders. Dkt. 13. Although Farrington does not dispute that FEMA has made a $410, 000 payment to her, she contends that this was merely an interim payment of the undisputed portion of the backpay and that FEMA owes her further compensation under the EEOC's orders. FEMA, in contrast, argues that it has already complied in full with the EEOC orders-and indeed, that it has paid Farrington more than the amount to which she is entitled-and moves to dismiss, or in the alternative, for summary judgment. See Dkt. 16. For the reasons explained below, the Court will deny FEMA's motion.

         I. BACKGROUND

         Sylvia Farrington began working for FEMA as a Disaster Assistance Employee (“DAE”) in 1996 and, over the next eight years, “had a consistent work history of being deployed . . . in senior level management positions for catastrophic events.” Dkt. 16-1 at 7. Beginning in August 16, 2004, FEMA deployed Farrington to its Orlando, Florida Joint Field Office, where she served as Branch Chief of Community Education and Outreach. Id. at 9; Dkt. 16 at 5. As Branch Chief, Farrington was responsible for “deployment of 400-500 employees, ” as well as “managing mitigation, planning, and responding to catastrophic events.” Dkt. 16-1 at 9.

         FEMA “released” Farrington from the Orlando Branch Chief position on May 27, 2005-a decision that she subsequently challenged under Title VII. Id. At the time of her “release, ” Farrington was told that she would be allowed to return to an “available managerial position[, ]” after completing “a training course” and working with “a mentor on a project.” Id. at 33. Farrington was later offered a managerial position in FEMA Region 6-Hazard Management Community Education Outreach Group Supervisor in Baton Rouge, Louisiana- but the offer was rescinded because she had not yet completed the mentoring assignment. Dkt. 16 at 5.

         Farrington filed a formal Equal Employment Opportunity (“EEO”) complaint on October 10, 2005, alleging that FEMA had engaged in discrimination on the basis of race and sex, as well as retaliation, beginning in 2001 and culminating in her May 2005 release from the Orlando Branch Chief position. Dkt. 16-1 at 6. After a hearing, an EEOC AJ issued a decision on September 26, 2008, finding that Farrington

was discriminated against on the basis of race (African-American), sex (female), and [was a victim of] retaliation (prior EEO activity) when: (1) she was wrongfully subjected to an administrative investigation which began in April of 2005, and culminated on May 27, 2005, when she was abruptly released from her Branch [Chief] position in Orlando, Florida, and said release occurred with the additional embarrassment and degradation of security guards positioned in the area; and (2) she was subjected to an ongoing hostile work environment beginning in January 2005, when her authority was undermined by [a supervisor, ] Janet Lamb[, ] and Lamb publically announced to employees and management officials that [Farrington] had been investigated and released.

Dkt. 16-1 at 47-48.[1]

         The AJ found that Farrington had “engaged in protected activity when she had a discussion [in January 2005] with Janet Lamb about how [Lamb] treats non-whites, ” Dkt 16-1 at 13;[2] see also Id. at 10, and that Lamb had then engaged in a “campaign against” Farrington, including causing other employees to document complaints about Farrington's management style, id. at 21-22, 35. Although Farrington took “steps to address staff concerns, ” FEMA initiated an “administrative investigation [that] derailed this process” and that culminated in Farrington's “release” from her managerial position. Dkt. 16-1 at 22-23. The AJ further found that FEMA subjected Farrington to disparate treatment with respect to the initiation and conduct of the investigation-an ad hoc proceeding in which Farrington was not given an opportunity to rebut the allegations against her-as well as with respect to the penalty imposed following the investigation. See Dkt. 16-1 at 17-18, 26-27. Finally, the AJ found that, although some FEMA officials believed that the investigation was “suspect” and accordingly rejected a recommendation that Farrington be terminated from all FEMA employment, Farrington was never provided a “realistic” opportunity to complete the mentoring assignment that FEMA imposed as a prerequisite to her future eligibility for managerial positions, and, at any rate, the mentoring requirement would not have been imposed but for the unlawful discrimination and retaliation. Dkt. 16-1 at 33, 35, 54.

         At least for present purposes, none of this in contested. Rather, this case focuses on whether FEMA has complied with the EEOC's remedial orders.

         A. 2008 EEOC Order

         Based on her finding that FEMA violated Title VII is various respects, the AJ awarded Farrington backpay, $60, 000 in non-pecuniary damages for emotional and reputational injury, and $114, 842.48 in attorney fees. Dkt. 16-1 at 49, 65. The AJ also struck the mentoring requirement, ordered FEMA immediately to place Farrington in a managerial position comparable to that of Orlando Branch Chief (outside the supervisory authority of Lamb and another person), directed the agency to take steps to restore Farrington's reputation, and ordered that Lamb and others receive anti-discrimination trainings. Dkt. 16-1 at 66-70.

         With respect to the calculation of backpay-the issue that lies at the core of the present action-the AJ provided detailed guidance. She explained:

(1) Had it not been for the discrimination, [Farrington] would have continued to work in Orlando, Florida, in her Branch Chief position until she was offered the position in Region 6. Thus, she is entitled to backpay for the duration of time that the Branch Chief position in Orlando was filled by anybody up to the point of time that she was offered the position in Region 6 referenced below in paragraph (2). Her backpay shall be calculated at her base salary (at $80, 000 per year for any regular hours worked) plus overtime hours worked paid at the overtime rate of pay minus any interim earnings. The amount of any overtime hours worked by her replacement(s) (up to the point of time that she was offered the position in Region 6) shall be determined and this amount of hours shall then be paid to the Complainant in overtime pay.
(2) Had it not been for the required discriminatory mentoring requirement, [Farrington] would have been assigned to the management position in Region 6, which had previously been offered to her, but then retracted because she had not completed her mentoring assignment. The evidence showed that Ronald Holmes was placed in the position. Thus, [Farrington] is entitled to backpay for the duration of time that this position was filled at her base salary (at $80, 000 per year for any regular hours worked) plus overtime hours worked paid at the overtime rate of pay minus any interim earnings. The amount of any overtime hours worked by Ronald Holmes and/or his replacement(s) shall be determined and this amount of hours shall then be paid to [Farrington] in overtime pay. In the event that the title of this position changed due to a temporary office changing into a long term recovery office, but the duties remained significantly the same and Holmes (or his replacement) continued to perform the work, then this shall be considered a position for which [Farrington] is entitled to backpay.
(3) The evidence is too speculative to allow for backpay after any elimination of the position referenced immediately above in paragraph (2). [Farrington] testified about how many days she had worked in past years. However, due to the nature of FEMA's business[, ] its need for employees to perform disaster relief varies significantly from year to year and varies within FEMA's regions throughout the United States. Needs are depend[e]nt upon whether a disaster strikes and, if so, the extent of destruction. The record was void of what FEMA's needs were after the offer for work in Region 6 was withdrawn. Therefore, [Farrington] has not established that she is entitled to any backpay other than the backpay previously described in paragraphs (1) and (2) above. . . .
* * *
Notwithstanding paragraphs (1) and (2) above, [Farrington] is not entitled to nine weeks of backpay during the time she was caring for her mother and unavailable to work. . . . Thus, the backpay calculation shall treat [Farrington] as unavailable for work for the first three weeks in November 2005[, ] . . . [for] the first ...

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