Verdicts, Orders & Settlements

November

Amtrak Settles Sex/ Wage Discrimination/ RetaliationSuit Brought by EEOC

On November 10, 2011, the Equal Employment Opportunity Commission announced that Amtrak, the nation’s largest rail carrier, will pay $171,483, raise the salary of a female human resources manager, and furnish other relief to settle a sex-based wage discrimination and retaliation lawsuit.

The EEOC charged that the National Railroad Passenger Corporation, also known as Amtrak, violated Title VII by engaging in a long-standing pattern of unlawful sex discrimination against a human resources regional director, Sheila Davidson, who works at the carrier’s 30th Street Station facility in Philadelphia. The EEOC said that Amtrak suppressed Davidson’s pay while she served as the human resources director for the eastern region, while giving her a greater workload than it gave to her two male counterparts, who were also human resources regional directors. The EEOC further alleged that, after refusing to raise Davidson’s salary above that of her male counterparts despite her heavier workload, Amtrak immediately increased the pay of one of the males when he was assigned to the eastern region, which was formerly Davidson’s territory.

The EEOC also contended that Amtrak violated Title VII and the Equal Pay Act by unlawfully retaliating against Davidson, including barring her from senior staff meetings, after she complained internally about the wage discrimination and later filed a charge with the EEOC.

The EEOC filed suit in U.S. District Court for the Eastern District of Pennsylvania (Civil Action No. 2:11-cv-00692) after first attempting to reach a prelitigation settlement through its conciliation process.

In addition to the $171,483 monetary settlement to be paid to Davidson, Amtrak will increase her annual salary by $16,505 to match it to that now earned by the male colleague whose salary was raised when he was assigned to Davidson’s former territory. The two-year consent decree resolving the lawsuit also prohibits Amtrak from engaging in any further sex discrimination or retaliation and requires the rail carrier to provide four hours of training to senior human resources staff on anti-discrimination laws, as well as post a remedial notice at Amtrak’s six regional offices and corporate headquarters.

“As a member agency of the President’s Equal Pay Enforcement Task Force, the EEOC is committed to taking appropriate action to remedy sex-based wage discrimination and to ensuring that employees who exercise their federal rights to protest pay discrimination are not subjected to unlawful retaliation,” said Spencer H. Lewis, Jr., director of the EEOC’s Philadelphia District Office, which oversees Pennsylvania, West Virginia, Delaware, Maryland, and parts of New Jersey and Ohio.

EEOC Regional Attorney Debra Lawrence added, “In addition to the significant monetary relief, Amtrak will raise Ms. Davidson’s salary so it is on par with her male counterparts and commensurate with her duties. We are pleased that Amtrak worked with us to resolve this lawsuit expeditiously without engaging in costly litigation.”

– EEOC, Press Release 11/10/11

November

Attorneys’ Fees Were Awarded at Laffey Rates in Eastern District of Virginia

We received a decision in Bland v. Fairfax County regarding our fee petition. Judge Cacheris awarded us nearly every penny that we put in for - at our Laffey rates and everything! We requested $310,000, and he awarded $305,000. Anyone putting in for fees in Eastern District of Virginia should definitely ask us for a declaration re: reasonableness of Laffey rates on this side of the river.

The jury's compensatory damages award did not fare as well before Judge Cacheris. The jury awarded $250,000.00 for our client's immense pain and suffering, and Judge Cacheris cut it to $50,000.00.

– submitted by Ellen K. Renaud

November

Court Grants Class Status in Wage and Hour/FLSA Case

On December 21, 2011, Maryland U.S. District Court Judge Peter J. Messitte granted class certification in a hybrid state wage-and-hour case/Fair Labor Standards Act collective action. The class consists of 152 Pinkerton's security guards at Andrews Air Force Base who were denied 45 minutes of pay per day for on-duty meal breaks. Pinkerton had a policy that the 45 minutes automatically be deducted from pay even though during their meal break the guards were confined to post, a guard shack, and required to be armed, listening to their radio and available to respond to emergencies.

Defendant strenuously argued that Dukes v. WalMart Stores, Inc. required the judge to deny class certification. Judge Messitte found unpersuasive Defendant's argument that because individual employees had different experiences in how often their meal periods were interrupted to perform duty, there was no commonality for a class. Judge Messitte noted that under both relevant tests used by Fourth Circuit courts, the facts, especially the fact that the guards were confined to post during the meal periods, indicated that the entire meal period was compensable, making the common policy to deduct 45 minute for the meal period appropriate for class certification.

Michael T. Anderson of Murphy Anderson argued. Jonis. Jacobs and Renee Gerni of Murphy Anderson developed the briefs with Michael.

Art Rogers of the DC EJC is co-counsel in the case. His advice has been instrumental in developing and prosecuting the case.

– submitted by Mark Hanna

November

EEOC Grants Default Judgement

We received a decision from Administrative Judge Davi in Atlanta granting default judgment for our client. Although the agency conducted a belated investigation on her EEO claims, it failed to produce the complaint file after over 400 days from the filing of the formal complaint (the file is now allegedly "in the mail"). The agency also failed timely to respond to the AJ's orders to produce the complaint file and show cause for its delay.

– Johnathan P. Lloyd, Passman & Kaplan, P.C.

November

Jury Awards $300,000 in D.C. Whistleblower Case

On November 21, 2011, a District of Columbia jury found in favor of Christina Conyers Williams in her D.C. Whistleblower Protection Act claim against the District of Columbia. She was formerly employed at APRA, the Addiction Prevention and Recovery Administration in the District of Columbia Department of Health ("DOH"),

Plaintiff's supervisors attempted unsuccessfully to terminate her for an alleged violation of the D.C. Residency Preference Act.

In its answer to a question on the verdict form, the jury stated that plaintiff engaged in a "protected disclosure" about contract irregularities in testifying before the D.C. Council in 2006.

The jury awarded $300,000 in compensatory damages, based on ten different acts of retaliation. The jury found constructive discharge after the agency took away all of Plaintiff's duties and staff. The jury also found a hostile environment. Additionally, the court issued a "cat's paw" instruction.

Neither of the supervisors attended trial. The District read the deposition of one of them into the record. The Court barred the District from using the deposition of the other supervisor because the District failed to demonstrate the witness [a D.C. resident] was "unavailable" for the purposes of Rule 32.

I tried the case with Kristen Hughes who did a superb job.

– submitted by John F. Karl, Jr.

November

Motion to Dismiss Denied in Hostile Work Environment Case

On November 28, 2011, the U.S. District Court for D.C. (Judge Roberts) denied a motion to dismiss filed by DHS (Secret Service) in Teliska v. Napolitano, C.A. No. 09-2422 (D.D.C.). We alleged that the Secret Service created a hostile work environment for Kate Teliska for a long time after she complained of sexual harassment by a USSS supervisor. The Court agreed that hostile work environment can be reprisal; that the events did rise to the level of a valid hostile work environment claim, and that Kate was not untimely in complaining to an EEO counselor about the last of a series of hostile actions towards her, some of which occurred in the 45-day period before she went to an EEO counselor. Indeed, there was further reprisal after that!

The Court gave the following boilerplate on considering 12(b)(6) motions to dismiss civil rights claims (p. 7):

Plaintiffs filing employment discrimination claims are not subject to heightened pleading standards, see Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) (cited approvingly in Twombly, 550 U.S. at 569-570), and they are not required to "plead law or match facts to every element of a legal theory." Krieger v. Fadely, 211 F.3d 134, 136 (D.C. Cir. 2000) (internal quotation and citation omitted). Historically, [t]he D.C. Circuit has long recognized the ease with which a plaintiff claiming employment discrimination can survive a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted. "Because racial discrimination in employment is a claim upon which relief can be granted, . . . 'I was turned down for a job because of my race' is all a complaint has to state to survive a motion to dismiss under [Rule] 12(b)(6)." Rouse v. Berry, 680 F. Supp. 2d 233, 235 (D.D.C. 2010) (quoting Potts v. Howard Univ. Hosp., 258 Fed. Appx. 346, 347 (D.C. Cir. 2007)). All that is required of a complaint is that it provide enough factual heft to show a plausible entitlement to relief, that is, that it contain "enough facts to [nudge] a claim to relief . . . across the line from conceivable to plausible[.]" Twombly, 550 U.S. at 570.

The court rejected the agency's exhaustion argument (p. 10):

DHS argues that Teliska failed to exhaust her administrative remedies for all of the discrete incidents that she cites to support her claim of hostile work environment that occurred before October 20, 2008, which is 45 days before the FAD suggests Teliska first sought counseling. (Def.'s Mem. in Supp. of Def.'s Mot. to Dismiss ("Def.'s Mem.") at 8-12.) However, a "hostile work environment claim . . . 'is composed of a series of separate acts that collectively constitute one unlawful employment practice.'" Smith-Thompson v. Dist. of Columbia, 657 F. Supp. 2d 123, 131 (D.D.C. 2009) (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002) and 42 U.S.C. § 2000e-5(e)(1)).

An interesting issue was whether Kate engaged in protected activity by reporting the initial sexual harassment to a former supervisor at the Department of Defense, a different agency, when he then passed on her complaint to buddies in USSS. The Court stated (n. 3):

Because DHS does not challenge that Teliska's reporting of McCarthy's behavior to McFarland was a protected activity (Def.'s Mem. at 22-23), this opinion will assume without deciding that such activity was indeed protected. See CSX Transp., Inc. v. Commercial Union Ins., Co., 82 F.3d 478, 482-83 (D.C. Cir. 1986); Felter v. Salazar, 679 F. Supp. 2d 1, 2 n.2 (D.D.C. 2010). Defendant argued lack of causal connection, citing the span of two years between the initial sexual harassment and complaint about it and the subject hostile work environment (HWE). However, we pointed out that during that period there were repeated acts of HWE and that Kate more recently complained of sexual harassment and reprisal, so the gap wasn't great at all. Probably because we alleged continuing HWE and repeated protected activities, the Court did not even address this defense.

Thanks to Rachelle Ware Young for helping with the opposition.

This is the third motion to dismiss we have defeated in DDC this year!

– submitted by Alan Banov

November

Zaid Settles Termination Case with Defense Intelligence Agency

I am pleased to announce that I negotiated a rare settlement with the Defense Intelligence Agency for my client John Dullahan, a former analyst who was unceremoniously terminated and had his security clearance revoked without any due process on the grounds of "national security" in 2009. The settlement, including the back pay, amounted to approximately $350,000. We filed suit in January 2010 in the U.S. District Court for the District of Columbia. The Complaint can be found here: http://www.fas.org/sgp/jud/dullahan.pdf .

Back in June, during the course of the litigation, Secretary of Defense Gates granted the appeal I had filed challenging the termination process. Unfortunately the security clearance issue remains alive but I was not likely to cure that problem through this lawsuit. But our battle is not yet over!

This story appeared in November 22, 2011's online Washington Post. The original front page Washington Post story which appeared a year ago can be found here: http://www.washingtonpost.com/wp-dyn/content/article/2010/11/26/AR201011....

– submitted by Mark S. Zaid

November