407 F.Supp.2d 79 (D.D.C. 2005), Civ. A. 94-2814, Fogg v. Gonzales

Docket Nº:Civ. A. 94-2814
Citation:407 F.Supp.2d 79
Party Name:Fogg v. Gonzales
Case Date:July 25, 2005
Court:United States District Courts, District of Columbia

Page 79

407 F.Supp.2d 79 (D.D.C. 2005)

Matthew F. FOGG, Plaintiff,


Alberto R. GONZALES, [*] Attorney General of the United States, Defendant.

No. Civ.A. 94-2814 JAR.

United States District Court, District of Columbia.

July 25, 2005

Page 80

[Copyrighted Material Omitted]

Page 81

Frank J. Costello, Zuckert Scoutt & Rasenberger, LLP, Washington, DC, for Plaintiff.

Joe Lazar, U.S. Marshals Service, Arlington, VA, Peter S. Smith, United States Attorney's Office, Washington, DC, for Defendant.


RESTANI, District Judge. [**]

Plaintiff Matthew Fogg's motion for equitable relief is before the court upon remand from the court of appeals. See Fogg v. Ashcroft, 254 F.3d 103 (D.C.Cir.2001). A jury found that Fogg's employer, the United States Marshals Service ("USMS"), violated 42 U.S.C. § 2000e-16 by subjecting him to a racially hostile work environment, and by discriminating against him on the basis of race in specific instances. Jury Interrog. (Apr. 28, 1998) at ¶ ¶ 1-3. The district court (the "trial court") entered a judgment for money damages but granted only part of Fogg's request for equitable relief on the ground that the USMS validly dismissed Fogg for insubordination. See Order (Feb. 25, 2000). Pursuant to the remand instructions, this court considers Fogg's claims for equitable relief in the light of the issue-preclusive effect of the jury's verdict. For the reasons explained below, the court grants, in part, Fogg's requests for equitable relief. 1


Fogg, an African-American male, was employed by the USMS as a deputy U.S. Marshal in the Washington, D.C. metropolitan area from 1978 until his dismissal on September 30, 1995. Currently, he collects workers' compensation but is no longer employed by the USMS.

In this action, Fogg claimed he was subjected to a racially hostile working environment throughout his employment and also claimed to have suffered racially-motivated disparate treatment and/or retaliation in several specific instances. The instances of alleged discrimination began in 1985, when Fogg received a harsh reprimand and was transferred, ostensibly as punishment for having misused a government car. In response, Fogg filed an administrative Equal Employment Opportunity ("EEO") complaint, but it languished for years in the hands of the USMS.

With his EEO complaint still pending in 1989, Fogg was assigned to a position on the Metropolitan Area Task Force, a multi-agency unit tasked with tracking and apprehending dangerous fugitives. While on the task force, Fogg twice did not receive his annual performance ratings. He was passed over for promotion from the GS-12 to the GS-13 government salary level in May 1990. Once he obtained a promotion to the GS-13 level, he received

Page 82

no further promotions. Fogg was stripped of most of his task force supervisory responsibilities in January 1992. By 1993, Fogg was out of the field and in a desk job. While working in that capacity, Fogg had several meetings with USMS personnel in connection with EEO issues, including his 1985 complaint. His supervisor inquired about his EEO activities on March 4, 1993. This inquiry allegedly subjected Fogg to severe psychological stress, and thereafter he ceased working.

By October 1993, Fogg had exhausted all of his accumulated annual and sick leave and was placed on administrative leave. In December 1993, Fogg underwent a fitness-for-duty examination under the orders of the USMS. On November 14, 1994, the USMS ordered Fogg to return to work at the U.S. Marshall's Office for the District of Columbia. Fogg reported for duty on November 23, 1994, but remained for only a few hours before he complained of sickness and left. The USMS then attempted to schedule a fitness-for-duty examination for Fogg in January 1995. Fogg rescheduled the examination for a later date that same month, but he did not appear for the rescheduled appointment. Fogg claimed to have written a letter to the doctor explaining that a court date prevented him from appearing at the rescheduled appointment, but the evidence does not show that the doctor received the letter until several months after the appointment. Claiming Fogg refused to report to the examination, the USMS dismissed him for insubordination from his position, effective September 30, 1995. Fogg appealed the dismissal to the Merit Service Protection Board ("MSPB"), which found it to be valid.

Over the course of the month-long trial in April 1998, numerous witnesses "described a [USMS] ... that has labored in substantial racial turmoil for at least a decade, and in which racial identities are keenly felt." Mem. & Order (July 1, 1999) at 5. African-American members of the USMS perceived a pervasive attitude that "they are less highly regarded and more is expected of them than their white peers." Id. Defendant attempted to show that Fogg had not personally been subjected to a racially hostile working environment, and explained that the specific allegations of discrimination and/or retaliation were attributable to Fogg's shortcomings as a law officer and leader rather than his race. Id. at 5.

At the conclusion of the trial, the trial court provided the jury with instructions and interrogatories. Jury Instruction 30 provided the jury with the analysis it had to follow in determining liability, providing, in pertinent part, as follows:

If you find that plaintiff has established a prima facie case of discrimination, defendant may then show that there were legitimate, nondiscriminatory reasons, i.e., reasons other than the plaintiff's race, for the defendant's actions. If defendant has shown that there were reasons other than race for the challenged actions, you must find for defendant, unless plaintiff proves that these reasons were false and that the real reason for the challenged actions was plaintiff's race.... Plaintiff is not required to prove that his race was the sole reason, or even the primary reason for any of those actions. Rather, plaintiff need only prove that consideration of his race played a part in those actions, even though other reasons may also have motivated those actions. Plaintiff at all times bears the ultimate burden of persuading you that defendant intentionally discriminated against him. Consequently, in order for you to find for plaintiff, you must find from all of the evidence that plaintiff has proved by a preponderance

Page 83

of the evidence that defendant's motivation for taking the actions which plaintiff challenges was because plaintiff is an African American.

Jury Instructions (April 27, 1998) at 13.

The interrogatories asked the jury to answer a series of "yes" or "no" questions regarding the USMS's liability, to determine the amount of compensatory damages, if any, owed to Fogg, and to determine the probable pay level that Fogg would have achieved by the time of the jury's determination. The trial court designed the interrogatories to allow it to distinguish between binding findings and those findings that would be advisory because they pertained to events prior to the effectiveness of the Civil Rights Act of 1991, which amended Title VII.

With regard to the USMS's liability for specific actions alleged by Fogg, the interrogatories asked the jury to determine whether the USMS had discriminated against him by "disparate treatment and/or retaliation" in the following instances: (a) "By his reprimand from Chief Hein in 1985 and his subsequent removal from the Welch/Columb Task Force and transfer to Superior Court?"; (b) "By the promotion of Deputy Slack rather than plaintiff to a GS-12 position in 1986?"; (c) "By the failure to take timely action on plaintiff's 1985 EEO complaint?"; (d) "By the failure to give plaintiff annual performance ratings for the two year period beginning in April 1990?"; (e) "By the promotion of Deputy Earp rather than plaintiff in May 1990?"; (f) "By the alleged failure to promote plaintiff to a GM-13 position while he was on the Metropolitan Area Task Force?"; (g) "By the failure to promote plaintiff to a GM-14 position while he was on the Metropolitan Area Task Force?"; (h) "By limiting plaintiff's supervisory duties on the Metropolitan Area Task Force in March 1992?"; (i) "By inquiring about plaintiff's Equal Employment Opportunity activities during his working hours in 1993?"; (j) "By ordering plaintiff back to work in September 1994?"; (k) "By returning plaintiff to the GM-12 level in December 1994?"; (1) "By ordering plaintiff to report for a fitness-for-duty examination in 1995?"; (m) "By dismissing plaintiff from the U.S. Marshals Service on grounds of insubordination in September 1995?" Jury Interrog. at ¶ 3.

The jury found that Fogg was subjected to and affected by a racially hostile working environment for the entire period at issue. Jury Interrog. at¶ ¶ 1--2. The jury also found that the USMS had discriminated against Fogg in twelve of the thirteen instances listed in the interrogatories. 2 Jury Interrog. at ¶ 3. The jury's findings of discrimination included the USMS's order that Fogg report for a fitness-for-duty examination in 1995, as well as his dismissal on grounds of insubordination in September 1995. In terms of compensatory damages, the jury found that Fogg should be awarded $4 million. Jury Interrog. at ¶ 4.

After the trial, Defendant moved for judgment as a matter of law or a new trial, as well as remittur of the jury's $4 million award. The trial court denied Defendant's motions for judgment as a matter of law or a new trial but remitted the jury's award to $300,000 in accordance with the 1991 Act's damage cap, 42 U.S.C. § 1981a(b)(3)(D). Mem. & Order (July 1, 1999) at 7.

Fogg then moved for equitable relief. The trial court granted back pay from the effective date of the 1991 Act...

To continue reading