Farrington v. Beers ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SYLVIA E. FARRINGTON,
Plaintiff,
v.
Civil Action No. 13-1582 (RDM)
JEH JOHNSON, Secretary, U.S. Department
of Homeland Security,
Defendant.
MEMORANDUM OPINION AND ORDER
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.
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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
1
The AJ held that Farrington had failed to establish that she was subjected to a hostile work
environment prior to January 2005. See Dkt. 16-1 at 45, 47.
2
Among other issues, Farrington had heard second-hand that Lamb had used the word “darkie.”
The AJ found that Farrington “could not show that Janet Lamb had [in fact] used the word,”
although Farrington “strongly believed” that Lamb had done so and had raised the issue with
Lamb. Dkt. 16-1 at 44–45 (emphasis in original).
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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
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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 three weeks
in January 2006, and . . . for the first three weeks in March 2006.
Dkt. 16-1 at 55–57.
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B. FEMA’s Administrative Appeals
FEMA filed a timely appeal with the EEOC’s Office of Federal Operations (“OFO”),
challenging the merits of the AJ’s discrimination and retaliation findings, as well as her awards
of backpay and non-pecuniary damages. See Farrington v. Napolitano, EEOC DOC
0720090011, 2011 WL 281737, at *1, *5 (Jan. 19, 2011). On January 19, 2011, the OFO
affirmed the AJ’s findings of discrimination and retaliation, as well as her remedial orders. Id. at
*6–8. Of relevance here, the OFO rejected FEMA’s challenge to the AJ’s backpay award
without comment, stating only that “[w]ithin sixty (60) calendar days of the date this decision
becomes final, the Agency shall pay [Farrington] backpay,” id. at *8. The OFO “further directed
[FEMA] to submit a report of compliance” with the EEOC’s decision, including supporting
documentation. Id.
FEMA then requested reconsideration of the OFO’s decision, “or in the alternative,
clarification of relief ordered.” Farrington v. Napolitano, EEOC DOC 0520110295, 2011 WL
1924194, at *1 (May 12, 2011). With respect to backpay, FEMA argued that “because
[Farrington’s] job as a Disaster Assistance Employee (DAE) was intermittent in nature, it is very
difficult to calculate backpay, without speculation” and “that it is unclear when backpay 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.” Id.
On May 12, 2011, the OFO denied FEMA’s request for reconsideration. Id. at *3.
Addressing the back-pay award, it explained that
[t]he AJ’s decision provided specific direction on how to calculate backpay and
determine when it ceased. Given the language in Farrington that the Commission
discerned no basis to disturb the AJ’s findings and remedial orders and its general
order for backpay, we find that compliance with the Commission’s order for back
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pay requires the Agency to follow directions in the AJ’s decision for calculating
back pay, as well as complying with 29 C.F.R. § 1614.501.1. To the extent this
does not resolve some questions, the Agency must comply with Commission case
law in resolving how to calculate back pay.
Id. at *2 (emphasis added) (footnote omitted). In a footnote, the OFO further explained that,
although the AJ had stated that backpay should be based on a salary of $80,000 per year, “this
does not take into account salary increases, if any, as anticipated by 29 C.F.R. § 1614.501, which
must be included.” Id. at *2 n.1. Finally, the OFO again ordered FEMA to “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. *6–7.
C. Farrington’s Petition to Enforce EEOC Order
On December 20, 2012, the EEOC docketed a petition by Farrington for enforcement of
certain of the Commission’s prior orders. Farrington v. Napolitano, EEOC DOC 0420130004,
2013 WL 3865033, at *1 (July 17, 2013). In particular, Farrington raised “unresolved matters
concern[ing] back pay and her placement in a managerial position.” Id. at *2.3 “With respect to
back pay, [Farrington] argue[d] that calculations should be based on the position of ‘Hazard
Mitigation Community Education and Outreach Group Supervisor’ and cover the time period of
May 27, 2005 through May 12, 2011 (the date of the Commission’s decision).” Id. “As for her
placement in a [managerial] position,” Farrington argued that FEMA’s July 11, 2011 offer to
redeploy her did not include “adequate assurances that she will not be placed in work situations
with her harassers.” Id. at *2, *4.
In response, FEMA maintained that it had already paid Farrington an “estimated amount”
of $410,000 for backpay; that “[w]hen [FEMA] recalculated back pay, based upon the correct
3
Farrington acknowledged that FEMA had paid the $60,000 compensatory damages award and
the $114,842.48 attorney fees award. Id. at * 1–2.
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job title, it found that [Farrington] was only entitled to $331.9089.30;” and that the resulting
overpayment was sufficient to cover any interest to which Farrington might be entitled. Id. at *3.
FEMA further argued, moreover, that even if a further calculation of backpay was warranted, the
relevant period should “end on July 8, 2011, when [Farrington] rejected [FEMA’s] offer to
deploy her to a disaster.” Id.
The EEOC agreed with Farrington in part and with FEMA in part. With respect to back-
pay, it found that FEMA’s estimates and representations were insufficient. It explained:
The record before us does not contain adequate evidence of [FEMA’s] backpay
calculations or of payments already provided to [Farrington]. [FEMA] has only
provided a document entitled “Settlement Estimates for [Farrington] Comparison
to salary of Haz Mit Comm Ed & Outreach Group Supv.” This document appears
to cover pay periods between 2005 and 2008. The totals on the estimates are not
explained and do not match what [FEMA] claims to have already paid [Farrington].
Further, there is no evidence of the $410,000 payment to [Farrington]. [FEMA]
has not provided supporting documentation for any of its purported calculations.
Id. With respect to the relevant end date, however, the EEOC agreed with FEMA, concluding
that FEMA “fulfilled its obligations . . . when it contacted [Farrington] for deployment” to a
managerial position. Id. at *4. FEMA contacted Farrington’s counsel regarding this possible
deployment, and Farrington rejected “the order to deploy on July 11, 2011.” Id. As the EEOC
explained, because “an employer’s backpay liability is tolled when a complainant rejects an
unconditional offer of employment,” FEMA was only “required to provide back pay to
[Farrington] from May 27, 2005 until [she declined to deploy on] July 11, 2011.” Id.
Based on these findings, the EEOC entered the order that Farrington now seeks to
enforce. It ordered: “Within thirty (30) calendar days of the date this decision becomes final,
[FEMA shall] conduct a supplemental investigation with regard to the precise manner in which it
calculated the backpay it estimated was owed to [Farrington]” and to “modify such calculations
to cover pay lost through July 11, 2011, and provide additional payments as necessary.” Id. It
8
further ordered FEMA to submit supporting documentation of its calculations and prior
payments, as well as a report of compliance “within thirty (30) calendar days of the completion
of all ordered corrective action.” Id. Finally, the EEOC order advised that “[i]f [FEMA] does
not comply with the [EEOC’s] order, [Farrington] may petition [it] for enforcement” or exercise
her “right to file a civil action to enforce compliance with the [EEOC’s] order.” Id.
D. Present Suit
Electing to pursue the second of these options, Farrington timely commenced this action
on October 16, 2013. See Dkt. 1. Although she initially brought suit under Title VII, 42 U.S.C.
§ 2000e-16(c), seeking to challenge some aspects of the July 2013 EEOC decision while seeking
to enforce others, see Dkt. 1 at 1, 6–7, 9 (Compl. ¶¶ 2, 22–24, 34), she filed an amended
complaint on September 12, 2014, see Dkt. 13 (Amend. Compl.). The now-operative amended
complaint seeks judicial review under the APA and seeks only to enforce the July 2013 EEOC
decision’s rulings regarding backpay—that is, “to compel agency action unlawfully withheld or
unreasonably delayed” pursuant to 5 U.S.C. § 706(1). See Dkt. 13 at 1, 6–7 (Amend. Compl.
¶¶ 1, 24). Accordingly, Farrington no longer challenges the EEOC decision in any respect. See
id.; see also Dkt. 18 at 9–10 & n.6.4 FEMA moves to dismiss the complaint or, in the
alternative, for summary judgment. Dkt. 16.
II. ANALYSIS
A. Threshold Considations
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the
basis of race, color, religion, sex, or national origin against, among others, covered federal
4
The case was stayed for several months while the parties pursued mediation. Thereafter,
Farrington filed her amended complaint, Dkt. 13, and FEMA filed the motion presently before
the Court, Dkt. 16.
9
employees. See 42 U.S.C. §§ 2000e-16(a); 2000e-2(a). Before filing suit in federal court,
covered federal employees, like Farrington, must pursue administrative adjudication of their
claims. See id. §§ 2000e-5; 2000e-12; 2000e-16. EEOC regulations provide a detailed
framework for the required administrative proceedings. See Scott v. Johanns, 409 F.3d 466, 468
(D.C. Cir. 2005) (describing framework). First, the aggrieved employee must file a complaint
with the employing agency, which must conduct an investigation and, at the employee’s request,
refer the matter to an EEOC AJ for a hearing. See 29 C.F.R. §§ 1614.106, 1614.108–09. After
the investigation is complete or, if the employee requests a hearing, after the AJ issues a
decision, the employing agency must “take final action” on the complaint. Id. § 1614.110. If the
employing agency’s “final order does not fully implement the decision of the [AJ],” the
employing agency must then file an appeal with the Office of Federal Operations—the EEOC’s
appellate arm. See id. §§ 1614.403, 1614.110(a). The EEOC “reviews the record, supplements it
if necessary, and then issues a written decision.” Scott, 409 F.3d at 468. As relevant here, the
EEOC’s decision becomes final when it denies reconsideration of its decision, triggering the
employee’s right to bring suit in district court. See id.; 29 C.F.R. §§ 1614.405, 1614.407.
There are then “two types of civil actions that may arise from Title VII’s federal-sector
administrative process.” Scott, 409 F.3d at 469. “First, complainants who prevail in the
administrative process but who—for whatever reason—fail to receive their promised remedy,
may sue to enforce the final administrative disposition.” Id. “In such enforcement actions, the
court . . . examin[es] . . . only whether the employing agency has complied with the
administrative disposition” and does not review the “discrimination finding nor the remedy
imposed.” Id. The second type of civil action arises when the complainant challenges the
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EEOC’s findings as to liability or remedy, and in such an action the district court reviews de
novo both the EEOC’s underlying finding of liability and the remedial award. Id.
This action is of the first type. FEMA argues at length that the EEOC’s July 17, 2013
order was not arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with
law and seeks summary judgment on that basis, see Dkt. 16 at 25–29, but it misunderstands
Farrington’s operative allegations. In her amended complaint, Farrington seeks only to enforce
the EEOC’s July 17, 2013 order and does not challenge it in any respect. See Dkt. 13 at 1, 6–7
(Amend. Compl. ¶¶ 1, 24); see also Dkt. 18 at 9–10 & n.6. Although she did challenge the order
in her original complaint, see Dkt. 1 at 1, 6–7, 9 (Compl. ¶¶ 1, 22–24, 34), she has now
abandoned that position, see Dkt. 13 at 1, 6–7 (Amend. Compl. ¶¶ 1, 24); see also Dkt. 18 at 9–
10 & n.6.
FEMA frames the remainder of its motion as a motion to dismiss for lack of subject-
matter jurisdiction. It contends that it has now complied with the EEOC’s July 17, 2013 order
and that Farrington’s claim is, accordingly, moot. See Dkt. 16 at 16–24. That, however, is
precisely what Farrington disputes in this case. Thus, whether FEMA has complied with the
EEOC’s July 17, 2013 order goes to the merits of Farrington’s claim, and not to whether the
Court has jurisdiction to resolve that claim. See Johnson v. Brennan, 144 F. Supp. 3d 121, 130
(D.D.C. 2015) (explaining that the Court had subject-matter jurisdiction over “a civil action for
enforcement of a (presumably) favorable administrative disposition” by the EEOC); Rochon v.
Attorney Gen. of the U.S., 710 F. Supp. 377, 379 (D.D.C. 1989) (holding summary judgment
premature where plaintiff sought judicial enforcement of EEOC decision but defendant’s
position was “that all relief ordered by that decision has been provided”). The Court,
accordingly, rejects this argument as well.
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The fact that the EEOC has not—at least as far as the record reveals—itself made a
finding with respect to whether FEMA has complied with the July 17, 2013 order poses a more
substantial question—albeit one not discussed by either party. Although the D.C. Circuit has
reserved judgment on the issue, see Wilson v. Pena, 79 F.3d 154, 165 n.8 (D.C. Cir. 1996), some
courts have held that “an EEOC determination of non-compliance . . . is a prerequisite” to
bringing an enforcement action, Timmons v. White, 314 F.3d 1229, 1232 (10th Cir. 2003). This
view finds some support, moreover, in the governing EEOC regulation, which provides:
Where the Commission has determined that an agency is not complying with a prior
decision, or where an agency has failed or refused to submit any required report of
compliance, the Commission shall notify the complainant of the right to file a civil
action for enforcement of the decision pursuant to Title VII, the ADEA, the Equal
Pay Act or the Rehabilitation Act and to seek judicial review of the agency’s refusal
to implement the ordered relief pursuant to the Administrative Procedure Act, 5
U.S.C. 701 et seq., and the mandamus statute, 28 U.S.C. 1361, or to commence de
novo proceedings pursuant to the appropriate statutes.
29 C.F.R. § 1614.503(g). Thus, in the absence of a determination by the EEOC that the “agency
is not complying” with an order or has failed to submit a compliance report, it is unclear whether
the claimant’s right to seek judicial review of the agency’s “refusal to implement the ordered
relief” has been triggered.
Here, however, FEMA has not raised an exhaustion defense, and, because the defense
would not in any event deprive the Court of jurisdiction, see Norris v. Salazar, 885 F. Supp. 2d
402, 414 & n.13 (D.D.C. 2012), “the Court [need] not consider [the issue] sua sponte,” Johnson,
144 F. Supp. 3d at 130. The fact that Farrington has already filed one EEOC enforcement
petition, moreover, is not lost on the Court—nor is the fact that the EEOC had previously
admonished FEMA that “compliance with the Commission’s order for back pay requires
[FEMA] to follow the [detailed] directions in the AJ’s decision for calculating back pay, as well
as complying with 29 C.F.R. § 1614.501,” Farrington, 2011 WL 1924194, at *2. Finally, the
12
EEOC itself informed Farrington that, “[i]f [FEMA] [did] not comply with the Commission’s
order,” Farrington could either “petition the Commission to enforce the order” or “file a civil
action to enforce compliance with the Commission’s order prior to or following an
administrative petition for enforcement.” Farrington, 2013 WL 3865033, at *4.
Under these circumstances—and, in particular, given FEMA’s failure to raise the issue—
the Court will not dismiss Farrington’s enforcement action for failure to exhaust.
B. The Merits
Notwithstanding the fact that the portion of FEMA’s motion addressing the merits of
Farrington’s claim is based on mootness, both FEMA and Farrington have, in effect, presented
their respective evidence and arguments on the merits. Thus, as a matter of judicial economy,
the Court will treat FEMA’s motion as a motion for summary judgment on the merits.
Summary judgment is appropriate when “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). “A fact is
material if it ‘might affect the outcome of the suit under the governing law,’ and a dispute about
a material fact is genuine ‘if the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.’” Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting Liberty
Lobby, 477 U.S. at 248). “The party seeking summary judgment bears the initial responsibility
of demonstrating the absence of a genuine dispute of material fact,” which it may accomplish by
“identifying those portions of the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, which it believes demonstrate the absence
of a genuine issue of material fact.” DeRose v. Rice, No. 04-0338, 2006 WL 367888, at *7
(D.D.C. Feb. 16, 2006) (internal quotation marks omitted), aff’d, 236 F. App’x 635 (D.C. Cir.
13
2007). To avoid summary judgment, “[a] non-moving party . . . must [in turn] establish more
than the mere existence of a scintilla of evidence in support of its position.” Id. (quotation marks
omitted).
Here, the summary judgment inquiry arises in a unique context. The Court is not called
upon to consider whether FEMA engaged in discriminatory or retaliatory conduct or to decide
what remedies are warranted. Rather, the sole question before the Court is whether FEMA has
complied with the EEOC’s July 17, 2013 order directing that it (1) conduct a supplemental
investigation” regarding the manner in which “it calculated the backpay award it estimated it
owed” Farrington; (2) “modify such calculations to cover pay lost through July 11, 2011;” (3)
“provide additional payments as necessary;” (4) provide supporting documentation and evidence
of prior payments to the EEOC; and (5) provide a compliance report to the EEOC. Farrington,
2013 WL 3865033, at *4. Although “[t]he Court is aware of no precedent establishing the
evidentiary burden that [a] plaintiff must meet in an enforcement action such as this, . . . it need
not decide the proper standard” at this juncture. DeRose, 2006 WL 367888, at *8. As explained
below, the Court concludes that under any plausible standard, FEMA has failed to establish the
absence of a genuine dispute of material fact.
To start, the present record fails to demonstrate that FEMA has complied with the
EEOC’s order in one key respect. In response to FEMA’s contention that its payment of “the
undisputed amount” of $410,000 was “more than sufficient” to compensate Farrington for lost
wages, the EEOC found that FEMA had failed to provide “supporting documentation for any of
its purported calculations,” Farrington, 2013 WL 3865033, at *3, and it, accordingly, ordered
FEMA to provide that documentation, id. at *4. As far as current record reveals, FEMA has yet
to provide further documentation of “the precise manner in which it calculated” $410,000 figure.
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Id. FEMA’s motion, instead, relies on documents it submitted to the EEOC, Dkt. 16-6 at 3 & n.
2—documents which the EEOC held inadequate—and declarations prepare for purposes of this
litigation, which do not recount or document how FEMA actually “estimated” the $410,000
amount, see Dkt. 16-8, 16-9.
FEMA has also failed to show the absence of a genuine dispute of material fact as to
whether FEMA has complied with the EEOC’s order with respect to the calculation and payment
of backpay it owes to Farrington. The EEOC ordered FEMA “to conduct a supplemental
investigation with regard to the precise manner in which it calculated the backpay it estimated
was owed” and to “modify such calculations to cover pay lost through July 11, 2011, and [to]
provide additional payments as necessary.” Id. at *4. In arguing that it has fully complied with
the EEOC’s order, FEMA focuses on the fact that it has conducted a supplemental investigation,
which, in its view, vindicated its prior position that the $410,000 payment was “more than
sufficient” to compensate Farrington. See Dkt. 16 at 17–24. There are numerous outstanding
questions of disputed material fact, however, about whether the $410,000 payment that
Farrington has received satisfies FEMA’s backpay obligation under these directives. Most
obviously, the dearth of competent, detailed evidence as to how FEMA calculated the $410,000
figure impairs Farrington’s—and the Court’s—ability to assess whether that sum was sufficient
to discharge FEMA’s obligation. Where there is evidence, moreover, it is disputed.
In arguing that it has now determined that Farrington was entitled to only about $60,000
in back pay, Dkt. 16 at 23, for example, FEMA relies on the AJ’s conclusion that Farrington 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.” Dkt. 16-1 at
55. According to FEMA, this means that Farrington was entitled to no backpay for the period of
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time preceding her (rescinded) offer of employment in the Region 6 position because FEMA’s
supplemental investigation purportedly revealed that “no individual . . . held the position of
Community Education Branch Chief after . . . Farrington” was released from that position. Dkt.
16-8 at 2 (Thompson Decl. ¶ 6). But Farrington points to countervailing evidence that, even if
no one held the identical title after her release, another FEMA employee performed the same job
functions. See Dkt. 18 at 12; Dkt. 18-2 at 3–4; Dkt. 25 at 2. And, to the extent FEMA’s position
turns exclusively on the job title—regardless of overlap in the actual substance of the job—the
Court is unpersuaded that the EEOC’s decision can be given such a crabbed construction.
FEMA also argues that the second period of time identified in the AJ’s order—“the
duration of time that” the position of Community Education Outreach Group Supervisor in
Region 6 position was filled, Dkt. 16-1 at 55—ended in June 2006. Relying on a theory similar
to its contention that Farrington’s prior position was left unfilled, FEMA argues that FEMA
downsized its operations in June 2006, and, as a result, the duties of the Region 6 Community
Education Outreach Group Supervisor were subsumed by “the staff that was already deployed.”
Dkt. 16-9 at 3–4 (McGrane Decl. ¶¶ 12–14). In response, however, Farrington adduces evidence
that, for at least some time after June 2006, FEMA did employ a Community Education
Outreach Group Supervisor in Region 6. See Dkt. 18 at 14; Dkt. 18-5 at 2. She further points
out that FEMA’s contention that this person was hired for long-term recovery, see Dkt. 21-2 at 2
(McGrane Decl. II ¶ 8), whereas she was at least nominally a temporary employee, is irrelevant
in light of the EEOC’s order that Farrington is entitled to backpay even if “the title of this
position changed due to a temporary office changing into a long term recovery office.” Dkt. 16-
1 at 56. On the present record, the Court cannot determine whether, at least as a functional
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matter, the Region 6 position’s duties continued to be performed after June 2006, and if so, for
how long.
In light of the multiple material issues of fact that remain in dispute, the Court will deny
FEMA’s motion for summary judgment.
CONCLUSION
For the forgoing reasons, it is hereby ORDERED that FEMA’s motion to dismiss or, in
the alternative, for summary judgment is DENIED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: September 11, 2016
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