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Farrington v. Nielsen

United States District Court, District of Columbia

March 1, 2018

SYLVIA E. FARRINGTON, Plaintiff,
v.
KIRSTJEN NIELSEN, Secretary, Department of Homeland Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          RANDOLPH D. MOSS, United States District Judge

         This is yet the latest chapter in a discrimination and retaliation case dating back to at least May 2005, when Plaintiff Sylvia Farrington was released from her position as a Branch Chief in the Orlando office of the Federal Emergency Management Agency (“FEMA”). Farrington filed an administrative complaint, and the Equal Employment Opportunity Commission (“EEOC”) ultimately found in her favor. Among other relief, the EEOC awarded Farrington back pay. That, however, was far from the end of the dispute. FEMA filed an unsuccessful administrative appeal and a request for reconsideration or clarification, and Farrington filed an EEOC petition for enforcement of the Commission's order. Notwithstanding that additional administrative litigation, and notwithstanding FEMA's payment to Farrington of an “estimated amount” of $410, 000 for back pay, the parties remained at loggerheads. Farrington then brought suit in this Court, seeking an order compelling FEMA to comply with the EEOC's order, which directed that FEMA: (1) “conduct a supplemental investigation” of how “it calculated the backpay it estimated” it owed Farrington, and (2) “provide additional payments” to Farrington “as necessary.” Farrington v. Napolitano, EEOC DOC 0420130004, 2013 WL 3865033, at *3 (July 17, 2013). In an earlier opinion, the Court denied FEMA's motion for summary judgment, concluding that there was a “dearth of competent, detailed evidence [regarding] how FEMA calculated the $410, 000 figure” and about whether FEMA had, as it asserted, already discharged its obligations under the EEOC order. Farrington v. Johnson, 206 F.Supp.3d 634, 644 (D.D.C. 2016).

         The case is now back before the Court on FEMA's renewed motion for summary judgment and Farrington's cross-motion for summary judgment. In addition, after the Court denied FEMA's initial motion, FEMA filed a counterclaim against Farrington seeking reimbursement of a substantial portion of the $410, 000, which FEMA now says that it overpaid Farrington. Farrington, in turn, has moved to dismiss that counterclaim on the ground that FEMA previously conceded that it owed at least the $410, 000 that it paid her. The difficulty with all of this is that the only claim before the Court is an Administrative Procedure Act (“APA”), 5 U.S.C. § 706(1), claim seeking to compel FEMA to comply with the EEOC's order, and that claim has engendered a genuine dispute of material fact. Because the authority of the Court to resolve factual disputes in the context of an APA action to enforce an administrative order is limited, and because the EEOC, in any event, is better suited to resolve any factual dispute relating to the claims that it has already adjudicated, the Court will deny the pending motions without prejudice and will stay this action to permit Farrington to return to the EEOC (and FEMA, if necessary) to resolve the remaining factual disputes.

         I. BACKGROUND

         The factual and procedural background of this case is recounted at length in the Court's prior opinion. Farrington, 206 F.Supp.3d at 636-41. For present purposes, the Court will briefly recount only the relevant history.

         A. Farrington's Employment

         Sylvia Farrington began working for FEMA as a Disaster Assistance Employee (“DAE”) in 1996. Although DAEs are hired to work on an intermittent basis in response to particular disasters, Dkt. 16-3 at 2; Dkt. 16 at 4-5, Farrington “had a consistent work history of being deployed over eight years with FEMA in senior[-]level management positions for catastrophic events” preceding the events at issue in her discrimination and retaliation complaint. Dkt. 16-1 at 7. “At the time of the events at issue, [Farrington] was serving as a Branch Chief of Community Education and Outreach in FEMA's Orlando, Florida office.” Dkt. 16-2 at 2. In that role, she 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 her position in the Orlando office in May 2005 and, at that time, told her 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. Consistent with that undertaking, she was later offered a managerial position in FEMA Region 6 as the Hazard Management Community Education Outreach Group Supervisor in Baton Rouge, Louisiana. Dkt. 16 at 5. FEMA rescinded that offer, however, because Farrington had “not completed [the] mentoring assignment.” Dkt. 16-1 at 35.

         B. Administrative Actions

         On October 10, 2005, Farrington filed an administrative complaint alleging that she was discriminated against based on her race and sex and was retaliated against for complaining about workplace race discrimination. Dkt. 16-1 at 6. On September 26, 2008, an EEOC Administrative Judge (“AJ”) found in Farrington's favor, concluding that she “was discriminated against on the basis of race (African-American) [and] sex (female), and” in retaliation for her “prior EEO activity.” Id. at 47-48. Among other things, the AJ found that Farrington was discriminated and retaliated against when she was discharged from her Orlando Branch Chief position and when she was denied the Region 6 managerial position. Dkt. 16-1 at 47-48, 55-57. The AJ ordered that FEMA immediately place Farrington in a managerial position comparable to her former position and award her the following damages: $60, 000 in non-pecuniary damages for emotional and reputational injury, $114, 842.48 in attorneys' fees, and-as relevant to this case- back pay. Id. at 64-65.

         For purposes of the present suit, the AJ's finding of discrimination is not disputed. Instead, the crux of the case is whether FEMA has complied with the AJ's order that it provide Farrington with back pay, calculated as follows:

(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 back pay 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 back pay 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 back pay 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[-]ter[m] 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 back pay.
(3) The evidence is too speculative to allow for back pay 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 [de]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 back pay other than the back pay previously described in paragraphs (1) and (2) above.

Dkt. 16-1 at 55-56.

         On appeal, the EEOC's Office of Federal Operations (“OFO”) affirmed the AJ's discrimination and retaliation findings as well as the back pay award. Farrington v. Napolitano, EEOC DOC 0720090011, 2011 WL 281737, at *6-8 (Jan. 19, 2011). The OFO ordered that “[w]ithin sixty (60) calendar days of the date this decision becomes final, [FEMA] shall pay [Farrington] backpay.” Id. at *8.

         FEMA then requested reconsideration or clarification. Of particular relevance here, FEMA argued (1) that “because [Farrington's] job as a Disaster Assistance Employee (DAE) was intermittent in nature, it is very difficult to calculate back pay, without speculation” and (2) “that it is unclear when back pay should end since the position [Farrington] occupied prior to being released was later converted to a Disaster Temporary Employee, a full-time position in 2005, which means she would have been asked to compete for the position and her selection was not guaranteed.” Farrington v. Napolitano, EEOC DOC 0520110295, 2011 WL 1924194, at *1 (May 12, 2011). In response, the OFO simply observed that “[t]he AJ's decision provided specific direction on how to calculate back pay and determine when it ceased, ” and it directed FEMA to “follow directions in the AJ's decision for calculating back pay.” Id. at *2. “To the extent that this does not resolve [the remaining] questions, ” the OFO added, “the Agency must comply with Commission case law in resolving how to calculate back pay.” Id. The OFO repeated its order that FEMA “pay [Farrington] back pay” “within sixty (60) calendar days of the date this decision becomes final” and “to submit a report of compliance, ” including supporting documentation. Id. at *2-4.

         On July 8, 2011, FEMA offered to deploy Farrington to a disaster in a supervisor position, but she declined the offer. The following year, FEMA paid Farrington $410, 000 in back pay, which FEMA estimated would compensate her for the period from May 26, 2005 (when she was discharged) to September 26, 2008 (the date of the AJ's order). Dkt 16-6 at 3-4 & n.2. After FEMA failed to make additional payments, however, Farrington petitioned the EEOC for enforcement of its order, claiming that she was also owed back pay for the period after September 26, 2008. Farrington v. Napolitano, EEOC DOC 0420130004, 2013 WL 3865033, at *1-2 (July 17, 2013) (“July 2013 EEOC order”). FEMA disagreed but added that, “if additional back pay” was due, the relevant period ended “on July 8, 2011, when [Farrington] rejected [FEMA's] offer to deploy her to a disaster.” Id. at *3 (emphasis omitted). Moreover, according to FEMA, its $410, 000 payment was based on an overestimate of the amount due and that, applying the “correct job title, ” Farrington was entitled to receive only $331, 909.30. Id. Finally, FEMA maintained that, to the extent the EEOC concluded that Farrington was also entitled to interest, FEMA's “generous estimate already cover[ed]” that amount. Id.

         The OFO agreed with Farrington that FEMA was obligated to provide back pay for a period extending beyond the AJ's decision, but agreed with FEMA that she was not entitled to back pay after July 11, 2011, when she declined FEMA's offer of redeployment. Id. at *4. That conclusion, however, did not settle matters. Observing that “the record . . . [did] not contain adequate evidence of [FEMA's] backpay calculations or of payments already provided to [Farrington], ” the EEOC concluded that it could not determine whether FEMA had complied with the AJ's order. Id. at *3. The EEOC, accordingly, ordered that FEMA (1) “conduct a supplemental investigation with regard to the precise manner in which it calculated the backpay it estimated was owed to [Farrington]” within 30 days and “modify such calculations to cover pay lost through July 11, 2011, and provide additional payments as necessary;” and (2) submit the calculations and a report of compliance within 30 days of ...


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