UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
JEFFREY KAPCHE, : : Plaintiff, : : v. : Civil Action No. 07-2093 (JR) : ERIC HOLDER, Attorney General of : the United States, : : Defendant. :
MEMORANDUM
After a jury returned a verdict in favor of Jeffrey
Kapche on his claim of discrimination and violation of the
Rehabilitation Act on May 20, 2009, awarding him compensatory
damages of $100,000, the parties turned their attention to the
question of what equitable remedy, if any, would be awarded the
plaintiff under the “make whole” rubric applied in employment
discrimination cases.1 On 10/21/09, I heard evidence and
argument on plaintiff’s motion for back pay and either
instatement or front pay. The parties submitted pre-hearing
briefs and supplemental materials following the hearing. Those
papers, and the testimony taken at the October 21 hearing, deal
mostly with the FBI’s position that plaintiff is entitled to no
equitable relief after March 1, 2007, the date on which the FBI
revoked its conditional offer of employment upon a finding of
1 The equitable remedy process was delayed for four months by the briefing and decision of a defense motion for judgment as a matter of law [#104] that was denied on 9/11/2009 [#113]. lack of candor in plaintiff’s application process. A secondary
issue, not dealt with at the October 21 hearing but subsequently
briefed by the parties, is whether, between the date on which the
FBI was found to have discriminated against him and March 1,
2007, plaintiff suffered any actual economic damages compensable
by an equitable remedy.
1. The McKennon defense
McKennon v. Nashville Banner Pub. Co., 513 U.S. 352,
362-63 (1995), applied in this Circuit by Castle v. Reuben, 78
F.3d 654, 657 (D.C. Cir. 1996), established that a district court
may deny instatement, front pay and full back pay when the
employer has presented after-acquired evidence of misconduct “of
such severity that the employee in fact would have been
terminated on those grounds alone if the employer had known of it
at the time of the discharge.” McKennon, 513 U.S. at 362-3.
In this case, the FBI was reconsidering its decision
not to hire plaintiff because of his diabetes regimen, as a way
of resolving his (then) internal discrimination complaint.
During the Personnel Security Interview (“PSI”) that was part of
that reconsideration process, plaintiff represented that he had
not been disciplined by any of his former employers. The FBI,
however, learned in a follow-up inquiry that plaintiff had failed
to cooperate with an investigation into an incident involving the
unauthorized pumping of gasoline from the tank of his then-
- 2 - employer, the Fort Bend County Sheriff’s Office, until he was
advised that his continuing denial of misconduct might lead to a
polygraph examination, and that plaintiff had been subsequently
suspended without pay for some two weeks and placed on
disciplinary probation for 180 days. After confronting plaintiff
with this information, the FBI determined that the explanation
plaintiff gave to it (the FBI) for why he took the gasoline
contradicted the explanation he had given to his supervisors at
the Fort Bend County Sheriff’s Office. At that point, the FBI
determined that plaintiff was unsuitable for employment as an FBI
Special Agent because of “lack of candor” and revoked its
conditional offer of employment.
Plaintiff first took the position [see #117] that the
FBI’s after-acquired evidence argument could not be heard because
it was an alternative defense “never pled” and the witnesses
relevant to the defense were not timely disclosed. But the FBI’s
amended answer [#23] sufficiently alleged the defense. And
plaintiff has not asserted and cannot assert that he was
surprised by the after-acquired evidence defense: it was the
subject of active pretrial discovery and indeed was the subject
of a successful motion in limine to exclude the testimony of the
very witnesses who knew about the after-acquired evidence. See
[#79].
- 3 - Plaintiff now makes a series of arguments that the
McKennon defense does not apply in this case. First, he argues
that the FBI must show that it was its actual practice - not just
its stated policy - to refuse Special Agent employment to a
person who conducted himself as Kapche did. Second, plaintiff
argues that the FBI was precluded from raising the McKennon
defense because the gasoline incident and plaintiff’s failure to
disclose it were a “direct result” of the unlawful
discrimination. Finally, plaintiff argues that the defense is
not applicable in refusal to hire cases because McKennon involved
only pre-termination misconduct. [#117].
As to the first of these arguments: No evidence was
adduced, either at the trial or at the evidentiary hearing on
equitable relief, that supported plaintiff’s suggestion that the
FBI applied its “lack of candor” policy arbitrarily, or
discriminatorily.2 I decline to embark on a whole new round of
discovery and to conduct what would amount to another trial of
this ancillary issue.3
2 During and after the 10/21/09 hearing, plaintiff relied heavily on the fact that he “passed” a polygraph examination, arguing that it mitigated against a “lack of candor” finding and that it showed the FBI did not comply with its own policies. [#127] At plaintiff’s urging, I ordered the FBI to produce an unredacted version of the test document for my review in camera. I found nothing to suggest that the FBI applied its policies arbitrarily or discriminatorily. 3 Although there had been substantial discovery on the after-acquired defense, plaintiff wanted more, including the
- 4 - Plaintiff’s second, “direct result” argument confuses
“direct result” with “but-for” causation. It may be true that,
“but-for” the FBI’s discrimination, plaintiff would not still
have been employed at the Fort Bend Sheriff’s Office at the time
he took the gasoline. There is no causal link, however. In the
one case plaintiff cites to support this argument, the misconduct
in question occurred at a hearing “occasioned by plaintiff’s
termination.” Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 555
(10th Cir. 1999). Here, plaintiff’s misconduct was unrelated to
the discrimination.
On the third argument: McKennon does deal with pre-
termination misconduct, but plaintiff offers no convincing
explanation of why its rationale would not apply to refusal to
hire or reinstatement cases as well. See Sellers v. Mineta, 358
F.3d 1058 (8th Cir. 2004) (no front pay where plaintiff’s own
post-termination misconduct prevented her from obtaining the
“traditional remedy of reinstatement”).
The FBI presented more than enough evidence to
establish that its refusal to hire decision was made in good
faith and driven by its suitability guidelines. The guidelines
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
JEFFREY KAPCHE, : : Plaintiff, : : v. : Civil Action No. 07-2093 (JR) : ERIC HOLDER, Attorney General of : the United States, : : Defendant. :
MEMORANDUM
After a jury returned a verdict in favor of Jeffrey
Kapche on his claim of discrimination and violation of the
Rehabilitation Act on May 20, 2009, awarding him compensatory
damages of $100,000, the parties turned their attention to the
question of what equitable remedy, if any, would be awarded the
plaintiff under the “make whole” rubric applied in employment
discrimination cases.1 On 10/21/09, I heard evidence and
argument on plaintiff’s motion for back pay and either
instatement or front pay. The parties submitted pre-hearing
briefs and supplemental materials following the hearing. Those
papers, and the testimony taken at the October 21 hearing, deal
mostly with the FBI’s position that plaintiff is entitled to no
equitable relief after March 1, 2007, the date on which the FBI
revoked its conditional offer of employment upon a finding of
1 The equitable remedy process was delayed for four months by the briefing and decision of a defense motion for judgment as a matter of law [#104] that was denied on 9/11/2009 [#113]. lack of candor in plaintiff’s application process. A secondary
issue, not dealt with at the October 21 hearing but subsequently
briefed by the parties, is whether, between the date on which the
FBI was found to have discriminated against him and March 1,
2007, plaintiff suffered any actual economic damages compensable
by an equitable remedy.
1. The McKennon defense
McKennon v. Nashville Banner Pub. Co., 513 U.S. 352,
362-63 (1995), applied in this Circuit by Castle v. Reuben, 78
F.3d 654, 657 (D.C. Cir. 1996), established that a district court
may deny instatement, front pay and full back pay when the
employer has presented after-acquired evidence of misconduct “of
such severity that the employee in fact would have been
terminated on those grounds alone if the employer had known of it
at the time of the discharge.” McKennon, 513 U.S. at 362-3.
In this case, the FBI was reconsidering its decision
not to hire plaintiff because of his diabetes regimen, as a way
of resolving his (then) internal discrimination complaint.
During the Personnel Security Interview (“PSI”) that was part of
that reconsideration process, plaintiff represented that he had
not been disciplined by any of his former employers. The FBI,
however, learned in a follow-up inquiry that plaintiff had failed
to cooperate with an investigation into an incident involving the
unauthorized pumping of gasoline from the tank of his then-
- 2 - employer, the Fort Bend County Sheriff’s Office, until he was
advised that his continuing denial of misconduct might lead to a
polygraph examination, and that plaintiff had been subsequently
suspended without pay for some two weeks and placed on
disciplinary probation for 180 days. After confronting plaintiff
with this information, the FBI determined that the explanation
plaintiff gave to it (the FBI) for why he took the gasoline
contradicted the explanation he had given to his supervisors at
the Fort Bend County Sheriff’s Office. At that point, the FBI
determined that plaintiff was unsuitable for employment as an FBI
Special Agent because of “lack of candor” and revoked its
conditional offer of employment.
Plaintiff first took the position [see #117] that the
FBI’s after-acquired evidence argument could not be heard because
it was an alternative defense “never pled” and the witnesses
relevant to the defense were not timely disclosed. But the FBI’s
amended answer [#23] sufficiently alleged the defense. And
plaintiff has not asserted and cannot assert that he was
surprised by the after-acquired evidence defense: it was the
subject of active pretrial discovery and indeed was the subject
of a successful motion in limine to exclude the testimony of the
very witnesses who knew about the after-acquired evidence. See
[#79].
- 3 - Plaintiff now makes a series of arguments that the
McKennon defense does not apply in this case. First, he argues
that the FBI must show that it was its actual practice - not just
its stated policy - to refuse Special Agent employment to a
person who conducted himself as Kapche did. Second, plaintiff
argues that the FBI was precluded from raising the McKennon
defense because the gasoline incident and plaintiff’s failure to
disclose it were a “direct result” of the unlawful
discrimination. Finally, plaintiff argues that the defense is
not applicable in refusal to hire cases because McKennon involved
only pre-termination misconduct. [#117].
As to the first of these arguments: No evidence was
adduced, either at the trial or at the evidentiary hearing on
equitable relief, that supported plaintiff’s suggestion that the
FBI applied its “lack of candor” policy arbitrarily, or
discriminatorily.2 I decline to embark on a whole new round of
discovery and to conduct what would amount to another trial of
this ancillary issue.3
2 During and after the 10/21/09 hearing, plaintiff relied heavily on the fact that he “passed” a polygraph examination, arguing that it mitigated against a “lack of candor” finding and that it showed the FBI did not comply with its own policies. [#127] At plaintiff’s urging, I ordered the FBI to produce an unredacted version of the test document for my review in camera. I found nothing to suggest that the FBI applied its policies arbitrarily or discriminatorily. 3 Although there had been substantial discovery on the after-acquired defense, plaintiff wanted more, including the
- 4 - Plaintiff’s second, “direct result” argument confuses
“direct result” with “but-for” causation. It may be true that,
“but-for” the FBI’s discrimination, plaintiff would not still
have been employed at the Fort Bend Sheriff’s Office at the time
he took the gasoline. There is no causal link, however. In the
one case plaintiff cites to support this argument, the misconduct
in question occurred at a hearing “occasioned by plaintiff’s
termination.” Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 555
(10th Cir. 1999). Here, plaintiff’s misconduct was unrelated to
the discrimination.
On the third argument: McKennon does deal with pre-
termination misconduct, but plaintiff offers no convincing
explanation of why its rationale would not apply to refusal to
hire or reinstatement cases as well. See Sellers v. Mineta, 358
F.3d 1058 (8th Cir. 2004) (no front pay where plaintiff’s own
post-termination misconduct prevented her from obtaining the
“traditional remedy of reinstatement”).
The FBI presented more than enough evidence to
establish that its refusal to hire decision was made in good
faith and driven by its suitability guidelines. The guidelines
FBI’s practice with similarly situated applicants, depositions of the two individuals that authored the so-called “lack of candor” memorandum, information about the people who were allegedly “call[ing] the shots” on the hiring decision in the Office of General Counsel, and depositions of other potentially relevant witnesses. [#117].
- 5 - state that deliberate omissions may be disqualifying, absent
mitigating circumstances. [#127, Ex. B]. Two witnesses from the
FBI’s Applicant Adjudication Unit who were responsible for
overseeing Plaintiff’s application process - Sharon Magargle and
Bonnie Adams - testified that applicants who demonstrate a lack
of candor are unsuitable for employment under the guidelines.
[#122 at 132, 234]. A witness from the FBI’s Office of
Professional Responsibility (“OPR”), Brian Chehock, testified
that Special Agents who make misrepresentations on employment
forms or otherwise demonstrate a lack of candor are not suitable
for employment in the first place, or, if they are “on-board”
employees, are subject to dismissal. He testified that this
conduct would make an agent Giglio-impaired, meaning that he or
she would be hindered or precluded from testifying at trial.
[#122 at 250-253].4 None of this evidence was rebutted.
The FBI properly invoked the after-acquired evidence
defense. Plaintiff will not have the remedies of instatement or
front pay.
4 Plaintiff makes much of the fact that he never had access to the FBI contract employee, Tracy Johnson, who first made the “lack of candor” decision. Her memorandum laying out all the factors for her decision, however, and the testimony of the FBI employees who were ultimately responsible for the decision - Magargle and Adams - is a sufficient demonstration of good faith. Margargle testified that this adjudication decision was “not a close call to [her] at all.” [#122 at 234].
- 6 - 2. Back pay
Plaintiff’s entitlement to back pay – if any – is only
for the period from January 23, 2005 - the date the FBI started
discriminating against him - to March 1, 2007 - the date of the
refusal to hire because of after-acquired evidence.
The FBI’s expert, Dr. William Carrington, calculated
that the sum of plaintiff’s income from his employment at the
Fort Bend County Sheriff’s Office and from other employers
between January 23, 2005 and March 1, 2007, plus the retirement
benefits accrued during this time, was $150,322 [#125, at ¶ 45];
and that, if plaintiff had been employed by the FBI, which
required a year of training at Quantico, adherence to a rigid pay
step system, and adherence to the its policy of not placing
Special Agents in their hometown offices, he would have earned
$11,934 less. [#125, at ¶ 61].
Plaintiff’s expert, Dr. Amy McCarthy, disputed that
calculation and asserted that plaintiff is entitled to between
$43,350 to $38,871 in back pay, [#126, Exhibit A], but
Dr. Carrington pointed out two errors in Dr. McCarthy’s
calculation that account for the difference: (1) she included
$27,000 in Federal Employee Retirement System benefits that would
not have accrued to plaintiff because the statute requires
federal employees to complete five years of service before
retaining any retirement benefits, 5 U.S.C. § 8410; and (2) she
- 7 - pushed the benefits of the above-market guaranteed return on
plaintiff’s seven percent contribution to the Texas County and
District Retirement System into the future. [#130]. After
adjustment for those errors, Dr. McCarthy’s calculation would
also result in a negative back pay figure. Plaintiff never
responded to Dr. Carrington’s critique of Dr. McCarthy, except
for his motion to strike the response as untimely (or, in the
alternative, for an additional seven days to respond, [#131], but
plaintiff has made no subsequent filings in the five months that
have passed since then). I find that Dr. Carrington’s
calculation of back pay is accurate, and that plaintiff is
entitled to no back pay.
An appropriate order accompanies this memorandum.
JAMES ROBERTSON United States District Judge
- 8 -