Opinion
Civil Action No. 3:97-CV-3105-L
July 31, 2002
MEMORANDUM OPINION AND ORDER
Plaintiff Joyce Doss ("Doss" or "Plaintiff") filed this action on December 18, 1997, pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., alleging discrimination based on her sex and race, and retaliation. Plaintiff bases her claims on a number of alleged unlawful employment practices perpetrated by Defendant Mel Martinez, as a representative of the United States Department of Housing and Urban Development ("HUD," "the Department," or "Defendant"). The court conducted a two-week bench trial from September 10, 1999, to September 24, 1999, on Plaintiff's discrimination and retaliation claims. The parties filed their Proposed Amended Findings of Fact and Conclusions of Law on November 13, 2000. The court now rules in favor of Plaintiff on her retaliation claim. Based on a preponderance of the evidence, the court makes the following findings of fact and conclusions of law as required by Fed.R.Civ.P. 52(a).
The facts contained herein are either undisputed or the court has made the finding based on the credibility or believability of each witness. In doing so, the court considered all of the circumstances under which the witness testified which include: the relationship of the witness to Plaintiff or Defendant; the interest, if any, the witness has in the outcome of the case; the witness's appearance, demeanor, and manner of testifying while on the witness stand; the witness's apparent candor and fairness, or the lack thereof; the reasonableness or unreasonableness of the witness's testimony; the opportunity of the witness to observe or acquire knowledge concerning the facts to which he or she testified; the extent to which the witness was contradicted or supported by other credible evidence; and whether such contradiction related to an important factor in the case or some minor or unimportant detail. When necessary, the court comments on the credibility of a witness or the weight to be given a witness's testimony.
A. Background
Plaintiff is an African-American woman currently employed by HUD as a community builder. In 1987, Doss was detailed from the position of Loan Specialist (Realty), GS-12, from HUD's Fort Worth Regional Office ("the Fort Worth Office") to unclassified duties in the Dallas Field Office ("the Dallas Office"). Thereafter, Doss began unofficially serving as the Acting Deputy Manager to the Acting Manager, C. Donald Babers ("Babers"), GS-13, of the Dallas Office.
A "detail" is a temporary assignment of duties that does not remove a person from his or her permanent position. By contrast, a "reassignment" is a permanent movement of an employee from one position to another at the same grade level. The term "reassignment" is used synonymously with the term "lateral." Finally, the term "acting" could mean that the employee is detailed or reassigned to a particular position.
In wading through this morass of job titles, the court observes the Department of Housing and Urban Development's myriad layers of bureaucracy add another level of confusion to an already complex fact pattern. At the very top is the Secretary of the Department who, prior to 1994, supervised a number of regional offices across the country. Between 1990 and April 1994, each regional office was headed by a Regional Administrator and a Deputy Regional Administrator. The Regional Administrator of the Fort Worth Office was Sam Mosely ("Mosely") through January 1993, Frank Davis ("Davis") through February 1994, and Steve Weatherford ("Weatherford") though April 1994. Walter Savier ("Savier") was the Deputy Regional Administrator through November 1993.
The Fort Worth Office was divided into at least five areas of responsibility, including the Office of Housing, the Office of Planning and Community Development, the Office of Fair Housing and Equal Opportunity, the Office of Counsel, the Office of Public Indian Housing, and the Office of Administration. During this time period, Robert Creech ("Creech") occupied the position of Director, Office of Housing, and reported directly to the Regional Administrator.
Under the Office of Housing, a number of branches, divisions, and field offices existed. In the Dallas Field Office, the Manager and Deputy Manager supervised the Single-Family Housing Development Branch and the Multifamily Loan Management Branch. During this time period, Babers occupied the position of Manager, and Doss occupied the position of Deputy Manager, until April 1994. Doss reported to Babers, who in turn, reported to Creech, the Director of Housing.
In 1988, the Department promoted Babers to the position of Manager of the Dallas Office, GS-14. Sometime thereafter, Doss applied for the position of Deputy Manager of the Dallas Office; however, the Department laterally assigned Bill Stewart ("Stewart"), a white male, to the position. In August of 1990, Doss filed an EEO Complaint ("the 90-14 Complaint"), alleging racial and sex discrimination by Defendant based on its failure to promote her to the Deputy Manager position. Doss named Babers, Savier, Mosely, and Creech as the Department officials who had discriminated against her. The parties participated in an adversarial administrative hearing to resolve the 90-14 Complaint on February 24, 1993. Babers, Savier, Mosely, and Creech testified against Doss and in favor of the Department.
Following the conclusion of the adversarial proceeding, the Administrative Law Judge ("ALJ") issued a Recommended Decision, finding, inter alia, that the Department discriminated against Plaintiff because of her race and sex. In May of 1993, following the ALJ's decision, Plaintiff and Defendant entered into a settlement agreement ("the 1993 Settlement") under which Defendant agreed to upgrade her to the GM-13 level, with full back pay and fringe benefits retroactive to the date Deputy Manager Stewart assumed his position in the Dallas Office. The 1993 Settlement also awarded reasonable attorney's fees, and stated that the Defendant would "fully respect all rights and privileges of employment owed to Complainant and further will engage in no impermissible acts of discrimination and/or reprisal against her for having filed any equal employment opportunity complaint(s)."
Subsequent to the 1993 Settlement, Doss filed a number of administrative complaints against Defendant alleging discrimination and reprisal. Specifically, the allegations before the court are contained in administrative complaints identified by the Department as (1) FW-96-02, filed November 12, 1995 ("96-02 Complaint"); (2) FW-96-06, filed January 20, 1996 ("96-06 Complaint"); (3) FW 96-38, filed July 1, 1996 ("96-38 Complaint"); (4) FW-97-22, filed January 23, 1997 ("97-22 Complaint"); (5) FW-97-51, filed June 16, 1997 ("97-51 Complaint"); (6) FW-97-52, filed May 30, 1997 ("97-52 Complaint"); and (7) FW-97-61, filed August 25, 1997 ("97-61 Complaint"). For the sake of clarity, the court notes that Doss's administrative complaints identified by the Department as FW-98-03 and FW-98-18 have not been properly exhausted and are therefore not presently before the court.
The 96-02 Complaint alleges discrimination based on race, gender, and reprisal. Specifically, Doss alleged that the Department (1) failed to promote her for the Single-Family Director position; (2) required her to report to the Fort Worth Office; (3) failed to provide direction and administrative support to the Dallas Office; (4) committed numerous acts of sabotage which negatively affected her performance and credibility; and (5) rated her performance as "Fully Successful," instead of "Outstanding," in retaliation for her prior EEO activity.
The 96-06 Complaint alleges discrimination and reprisal. Doss alleges Louis Ybarra, Director, Single-Family Housing in Fort Worth, (1) failed to give her proper support and direction; (2) was not courteous to her; (3) humiliated and embarrassed her; and (4) was hostile towards her.
The 96-38 Complaint alleges discrimination and reprisal. Doss alleges the Department (1) rated her "Fully Successful," as opposed to "Outstanding," on her 1995 performance rating; (2) removed her from her supervisory position of Branch Chief of Single-Family Housing in the Dallas Office; (3) refused her the opportunity to state her preference in which discipline she wanted to work after the Dallas Office had been outstationed from Fort Worth; and (4) required her to report to a Branch Chief of a lower grade than Doss held.
The 97-22 Complaint alleges discrimination and reprisal based on the Office of the Inspector General's audit of the Multifamily operation in Dallas.
97-51 Complaint alleges reprisal because she received a "Fully Successful" performance rating for 1996.
The 97-52 Complaint alleges reprisal based on comments made by Mari Barr in a December 13, 1996, Final Agency Decision on EEO Complaint FW-95-17 filed by Michael Freedlund.
The 97-61 Complaint alleges discrimination and reprisal based on the 1997 reassignment and detail of Patrick Liao to the Dallas Office as the temporary Single-Family Director.
B. The Department's 1994 Reorganization
Pursuant to the 1993 Settlement, the Department retroactively promoted Doss to the Deputy Manager position, GM-13, for the Dallas Office in July of 1993. Beginning in 1994, however, the Department initiated a nationwide reorganization to improve its standing with Congress, the General Accounting Office, and the Office of the Inspector General ("the 1994 Reorganization"). The purpose of the 1994 Reorganization was to downsize the Department and to hold senior managers more accountable.
With the concurrence of the Secretary's Office, advice from senior Department officials, and the employees' union, the Department allowed each of its divisions, including the Housing Division, to develop and implement its own reorganization plan. In April 1994, Nicholas Retsinas ("Retsinas"), Assistant Secretary for Housing, abolished the positions of Office Manager and Deputy Manager in all of the field offices in the Southwest Region, and created the position of Director, Single Family Housing Division ("Single-Family Housing Director").
Broadly speaking, the 1994 Reorganization centralized responsibility for the Department's housing programs in Washington, D.C. Prior to 1994, Single-Family Housing staff reported to the field Office Manager (in Dallas), who in turn reported to the Regional Director of Housing (in Fort Worth), who in turn reported to the Regional Administrator (in Fort Worth), who, finally, reported to a Department official in Washington, D.C. Under the 1994 Reorganization, the Single-Family Housing Director reported directly to the Deputy Secretary for Single Family Housing in Washington, D.C.
By the summer of 1994, the Department promoted Babers to the position of Area Coordinator, another position that had been created as a result of the 1994 Reorganization. In his new position, Babers had no supervisory authority over operations in the Dallas Office. Consequently, Doss became the highest ranking person in the Dallas Office, and as a practical matter, assumed the duties required by the Single-Family Director position, even though she was not officially detailed or assigned to the position.
C. Doss's Application for the Single-Family Director Position
The Department officially advertised some seventy Single-Family Director positions in June of 1994. These positions were to be filled according to the Department's standard merit-staffing procedures. Deputy Assistant Secretary for Single-Family Housing Emelda Johnson ("Johnson") was responsible for hiring and placing these Directors in field offices across the country. In determining whether to hire a candidate for the position, Johnson evaluated a number of factors, including (1) the candidate's position on the "Best Qualified List," completed by the Department's personnel office; (2) the candidate's answers to interview questions developed by Johnson to determine the candidate's management philosophy, attitudes, and skills; (3) the candidate's personal references, including a reference who could verify the candidate's actual job performance; and (4) the candidate's geographical preference.
Doss applied for the Single-Family Housing position for the Dallas Office. The Department considered Doss a strong candidate for the position. She made the "Best Qualified List," and after her August and September interviews, she received the second highest score among the pool of candidates. Johnson believed Doss was well qualified and considered her a leading candidate for placement in the Dallas Office. According to Johnson, Doss would have been promoted to the position but for the information she received from Doss's personal references. Specifically, Babers and Weatherford expressed concern that Doss was uncooperative, uncommunicative, and caused the turmoil in the Dallas Office.
D. The Dallas Office "Turmoil"
In the months preceding her application for the Single-Family Director position, the Dallas office was immersed in turmoil. The turmoil in the Dallas Office was caused primarily over a disagreement between Doss and Babers whether a number of Multifamily employees should be promoted. In January 1994, the Department authorized the field Managers to promote certain loan service workers in the Multifamily Housing Division from a GS-11 to a GS-12. During this period, Robert Greene ("Greene"), Chief of Multifamily, supervised the employees eligible for the promotion; however, Babers was the Manager on the Dallas Office, and possessed the sole and final authority to promote the loan service workers.
In March of 1994, Babers met with Doss and Greene to determine how to handle the promotions. As a result of the meeting, Babers, Doss, and Greene decided not to promote the workers immediately. Instead, the group decided to distribute GS-12 position descriptions to the workers eligible for the promotions, monitor their performance under the new position descriptions, and promote the workers only after they had received additional training. Babers directed Greene and Doss to memorialize the planned course of action in writing. Babers also asked Doss to meet with the affected workers and inform them how management planned to handle the promotions.
Shortly thereafter, the affected employees expressed concern over the decision not to promote them immediately. Babers met with the affected staff members individually and in groups. During these meetings, Babers represented to the employees that he, personally, wished to promote them, but that Doss had "held up" their promotions. As evidence of this, Babers published the memoranda Doss and Greene had drafted at his request. Doss was not present at any of these meetings. Based on Babers's representations, all of the employees eligible for promotion filed administrative complaints against Doss and Greene, alleging that Doss and Greene were responsible for "holding up" the promotions against Babers's wishes and a directive from Department headquarters.
On March 29, 1994, Babers relieved Doss of all responsibility over Multifamily operations in the Dallas Office because of her alleged "interference" with the promotions of five of the Multifamily employees. Babers reassigned her to Single-Family duties because of her disagreement with the promotions and to alleviate the stress that some employees were experiencing. Around this time, at least twelve administrative complaints and four Hotline Complaints were filed with the Office of the Inspector General against Doss. In addition to the administrative complaints alleging discrimination, the anonymous Hotline Complaints alleged that Doss had a drinking problem, arrived late to work, and pulled the blinds in her office and emerged with disheveled clothes. None of these allegations was ever substantiated. Doss believed the anonymous Hotline Complaints were instituted by Babers; however, the record is devoid of any evidence that Babers was behind the complaints.
D. Salamone Investigates "Turmoil"
In the summer of 1994, and in the midst of this turmoil, Johnson solicited comments from Babers and Weatherford concerning the selection of Doss for the Single-Family Director position. Johnson testified that Babers and Weatherford did not oppose Doss's selection; however, they each expressed their concerns regarding Doss's inability to cooperate and communicate with others. Around this time, the Department dispatched Phillip Salamone ("Salamone"), Deputy Assistant Secretary for Operations, to the Dallas Office to investigate the recent flurry of administrative complaints, the low morale, infighting, and the conflict between Babers, Doss, and the Multifamily employees.
During his visit, Salamone met with Weatherford, Babers, and Doss. Salamone asked each individually whether the relationship between Doss and Babers could be smoothed out and whether the conflict between them might be reconciled. By late September or early October 1994, Salamone reported to Johnson that the Dallas office remained in turmoil. He further informed Johnson that Doss and Babers could not reconcile their differences or smooth out their relationship. Specifically, Salamone believed Doss was argumentative and unwilling to compromise. Based on this information, Johnson did not select Doss, or anyone else, for the Single-Family Director position. Instead, the Department held the position vacant, despite having assigned a Single-Family Housing Director to most of the other Field Offices in the country.
The Department did not place a Director in a field office when it was not efficient to maintain two offices in one area. For example, the Department did not place a Director in the Spokane, Washington Office because most of the work could be completed by the Seattle Office, located in approximately the same area. As explained elsewhere, however, the Department did not outstation the Dallas Office for efficiency reasons.
E. The Department Outstations the Dallas Office
Rather than fill the Director position, the Department decided to outstation the Dallas Office from Fort Worth. Johnson, Weatherford, and Babers participated in the decision to outstation the Dallas Office. The Department stated that the Dallas Office was outstationed to address complaints from lenders that HUD was not speaking with one voice in the region, to reach grade parity between Single-Family and Multifamily employees, and to increase efficiencies between the Dallas and Fort Worth Offices. Johnson testified, however, that the Department would not have outstationed the Dallas Office but for the turmoil that existed at the time. Johnson further testified that the Department would not have outstationed the Dallas Office had it selected Doss to fill the Director position. Sue Mitchell ("Mitchell"), Special Assistant for Field Coordination, confirmed Johnson's testimony, stating that the decision to outstation the Dallas Office was based on the Department's inability to find someone to fill the Director position who had the ability to lead the organization.
On March 12, 1996, Retsinas formally changed the organizational structure of the Dallas Office by outstationing it from Fort Worth. In effect, the Dallas Office became a satellite office that reported to Fort Worth on all program matters.
On December 12, 1994, Johnson selected Louis Ybarra ("Ybarra"), Single-Family Housing Director in Fort Worth, to act as the Single-Family Housing Director in Dallas. The Single-Family Housing position in Dallas remained officially vacant. Rather than fill the position, the Department made Ybarra the "Acting" Single-Family Housing Director. During this time, Ybarra performed his duties in Fort Worth as well as the additional duties required by the Dallas Single-Family Director position. Shortly thereafter, Ybarra appointed Doss the Acting Chief of Single-Family Production. As a practical matter, Ybarra delegated to Doss supervisory authority over the Dallas Office. The relationship between Ybarra and Doss quickly soured, due in part to the awkward relationship between the Dallas and Fort Worth Offices, and their disagreement over various interoffice management issues. With the agreement of his supervisor James Hicks ("Hicks"), Director of Housing, Ybarra asked Johnson to reconsider her decision to give him supervisory authority over the Dallas Office.
Hicks replaced Creech as Director of Housing in October 1994. Hicks remained Director of Housing until approximately December 1996, at which time E. Ross Burton ("Burton") assumed this position.
F. The Department Reconsiders Doss for the Acting Single-Family Director Position
By this time, Johnson also believed the Dallas Office needed an independent Single-Family Director. As a result, Johnson acknowledged Ybarra' s request, and subsequently reconsidered Doss for the position. By 1995, however, the Department was planning another major reorganization. The Department decided to create four regional "Homeownership Centers," ("HOC's"), located in Denver, Atlanta, Santa Ana, and Philadelphia. By this reorganization, the Department planned to eliminate the Single-Family field offices. The Department ultimately abolished the Single-Family Director position, though there was still a need for a temporary or acting Director in the Dallas Office during this transition period.
Johnson approached Doss in early 1995 to discuss whether Doss would be interested in replacing Ybarra as the Acting Single-Family Director in Dallas. During this meeting, Johnson became more familiar with Doss, her prior administrative action against Babers, the 1993 Settlement, and the cause of the Dallas Office turmoil. Johnson believed Babers acted inappropriately regarding the administrative complaints filed against Doss. Johnson returned to Washington, D.C. with the belief that Doss possessed the technical ability necessary for the job, and that she deserved a second chance. Upon her return to Washington, D.C., Johnson proposed to Retsinas that the Department place Doss in the position. Retsinas agreed, but with the proviso that the Secretary's Representative and the Area Coordinator for the region concur with the decision. Johnson called Weatherford, the Secretary's Representative, and Babers, the Area Coordinator, to obtain their approval. Johnson testified that Babers and Weatherford seemed "sort of resigned" about Doss's selection, but did not outright oppose the decision. As a result, Johnson began to prepare the administrative forms required to place Doss in the position.
Weatherford withdrew his concurrence after consulting with Babers, Hicks, and Ybarra. Shortly after Johnson called Weatherford and Babers, Weatherford became aware of an alleged "mixed-race travel policy," purportedly instituted by Doss for Dallas office employees. Babers, Hicks, and Ybarra brought to Weatherford's attention the complaints of an employee, Sybil Higgenbotham ("Higgenbotham"), who was allegedly upset because Doss had mandated that any white employee traveling to a meeting or a conference be accompanied by a minority employee. According to Babers, two employees, Higgenbotham and Michael Freedlund, the Dallas union representative, complained to him directly in 1995. Babers chose not to investigate the allegations, discuss the matter with Doss, take any written notes, or take any further action other than to discuss the matter with Weatherford. According to Ybarra, Higgenbotham also complained to him about the institution of the policy, but, like Babers, Ybarra did not investigate the allegations or put anything in writing. Instead, Ybarra discussed the matter with Weatherford, and later with Linda Nessi ("Nessi"), Special Assistant to Johnson. At no point, however, did any Department employee investigate the matter, record Higgenbotham's concerns in writing, question any of the other employees affected by the alleged policy, or question Doss directly. In fact, no employee other than Higgenbotham complained; and of all the administrative complaints filed against Doss during this period, none mentioned the alleged mixed-race travel policy.
Doss recalled a meeting in early 1993 or 1994 in which she discussed "mixed-race travel." Present at the meeting were Darby Warsheck ("Warsheck"), Higgenbotham, Teressia Smith ("T. Smith"), and Costa Smith ("C. Smith"). Doss testified that at the meeting she discussed with her employees the racial division in the office. She further testified that she instructed her employees to consider cost and logistics, rather than race, when making work related travel plans. T. Smith testified at trial that she had no recollection of a "mixed-race" travel restriction. Brenda Briscoe ("Briscoe") also testified that she had never heard of such a requirement during her tenure in the Dallas Office. Warsheck testified that he and Higgenbotham were surprised by the policy; however, Warsheck did not complain about the policy to Doss or anyone else other than Higgenbotham. Warsheck also testified that his travel plans were never affected by the institution of the policy. Higgenbotham was apparently most troubled by the policy; however, she did not testify at trial or by deposition. The court deemed her recollection of the events critical and issued a subpoena for her testimony. The United States Marshal made several attempts to serve Higgenbotham, but was ultimately unsuccessful. The court therefore never heard from this important witness.
Weatherford, Babers, and Ybarra thought Doss's alleged "mixed-race" travel policy was inappropriate and demonstrated bad judgment. After speaking with Babers, Hicks, and Ybarra, Weatherford called Johnson and informed her that he could not support placing Doss in the position of Acting Single-Family Housing Director. As a result of Weatherford's call, Johnson took no further action and Doss did not receive the position.
G. Patrick Liao Becomes Acting Single-Family Director
In June 1994, Patrick Liao ("Liao") applied for the Single-Family Director position in a number of cities, including Dallas, Texas, and Des Moines, Iowa. The Department selected Liao for the Des Moines, Iowa position in the fall of 1994. By early 1997, Johnson and Katherine Malone ("Malone"), Special Assistant to Johnson, had conducted a search to find a candidate interested in being reassigned to the Dallas office in order to relieve Ybarra of his responsibilities. Liao expressed interest in being reassigned to the Dallas Office.
Malone replaced Nessi as Special Assistant to Johnson in approximately June 1996.
In April 1997, upon the recommendation of Malone and Johnson, Retsinas reassigned Liao without promotion from the Des Moines, Iowa Office to the Fort Worth Office as a Housing Program Advisor. Liao was subsequently detailed to the position of Supervisory Single-Family Housing Specialist in the Dallas Office. As a practical matter, Liao became the Acting Single-Family Housing Director. By placing Liao in this position, the Department sought to provide onsite leadership in the Dallas Office, to manage the transition to the HOC's, and to reduce tension caused by the awkward relationship between the Dallas and Fort Worth Offices. After serving in this temporary position, the Department transferred Liao to the Atlanta HOC at his existing pay grade.
On March 12, 1996, the Dallas Office Single-Family staff was officially outstationed into an Asset Management team and a Production team, both reporting to the Fort Worth Office. On April 22, 1996, the outstationing was suspended pending bargaining with the union. On June 14, 1996, after bargaining with the union, the staff was outstationed, and Doss was detailed, subsequently to be reassigned, to the position of Housing Program Advisor, GS-13, in the Fort Worth Single Family Asset Management Branch. In January 1997, Plaintiff was not placed in any position in the new Office of Housing organization. Currently, there are no Single-Family functions or Directors outside the four HOCs.
To the extent any conclusion of law is deemed to be a finding of fact, it is adopted as such; and likewise, any finding of fact that is deemed to be a conclusion of law is so adopted.
A. Retaliation
Title VII makes it "an unlawful employment practice for an employer to discriminate against any of his employees" who had either availed themselves of Title VII's protections or assisted others in so doing. See 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation under Title VII, a plaintiff must demonstrate that: (1) she engaged in a protected activity; (2) she experienced an adverse employment action following the protected activity; and (3) a causal link existed between the protected activity and the adverse employment action. Mota v. University of Texas Houston Health Science Ctr., 261 F.3d 512, 519 (5th Cir. 2001); Evans v. City of Houston, 246 F.3d 344, 351 (5th Cir. 2001). Plaintiff did not present direct evidence of retaliation at trial. The court therefore assesses Plaintiff's claims under the McDonnell Douglas framework. See Montemayor v. City of San Antonio, 276 F.3d 687, 692 (5th Cir. 2001).
Under this framework, a plaintiff must first establish a prima facie case of retaliation. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973); Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). Upon satisfying this requirement, a presumption of discrimination arises which the employer must rebut with a legitimate, nondiscriminatory reason for the challenged action. Russell v. McKinney Hospital Venture, 235 F.3d 219, 222 (5th Cir. 2000). Once the employer meets this requirement, the presumption of discrimination raised by the prima facie case disappears, and the plaintiff must prove by a preponderance of evidence that the legitimate reasons proffered by the employer are a pretext for retaliation. Id.
1. Plaintiff's Prima Facie Case
a. First Element — Protected Activity
The court finds that Doss has established a prima facie case for retaliation. To satisfy the first element, Plaintiff must demonstrate she has engaged in a protected activity. An employee engages in a protected activity if she has either (1) opposed any practice made an unlawful employment practice by Title VII, or (2) made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII. 42 U.S.C. § 2000e-3(a); Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996). The parties do not dispute that the 90-14 Complaint filed by Doss in 1990, and the subsequent settlement in May of 1993, satisfy the first prong of Plaintiff's prima facie case. Accordingly, the court concludes that Plaintiff has established the first element of her prima facie case.
b. Adverse Employment Action
The Fifth Circuit has stated that "Title VII was designed to address ultimate employment decisions." Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995). Not every decision made by an employer qualifies as an adverse employment action. Id "`Ultimate employment decisions' include acts `such as hiring, granting leave, discharging, promoting, and compensating'" an employee. Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997) (quoting Dollis, 77 F.3d at 782). By contrast, "interlocutory or mediate decision[s]" which may ultimately lead to an ultimate employment decision are insufficient to establish a prima facie case of retaliation. Fierros v. Texas Dept. of Health, 274 F.3d 187, 191 (5th Cir. 2001). To hold otherwise would expand the definition of adverse employment action to include actions which have only a tangential effect on the conditions of employment. Mattern, 104 F.3d at 708.
Plaintiff asserts she was subjected to adverse employment actions when the Department and/or her supervisors (1) failed to promote her to the Single-Family Director position; (2) required her to report to the Fort Worth Office; (3) failed to provide direction and administrative support; (4) committed numerous acts of sabotage which affected her performance and credibility; (5) rated her performance as "fully successful" instead of "outstanding" on numerous occasions; (6) humiliated and embarrassed her in a hostile manner; (7) removed her from her supervisory position of Branch Chief of Single-Family Housing; (8) refused her the opportunity to state her job preference after the Dallas Office was outstationed; (9) required her to report to a Branch Chief of a lower grade; (10) conducted an audit over a Branch she once held supervisory authority; (11) made derogatory comments against her in an administrative complaint filed by a co-worker; and (12) failed to promote her to the temporary or Acting Single-Family Director position.
The court determines that most of Plaintiff's allegations fail to establish actionable ultimate employment decisions. Although some of the allegations overlap, the court addresses them in turn. First, the allegations concerning the Department's failure to give Doss proper support and direction do not rise to the level of an ultimate employment decision. Similarly, the allegations that the Department required Doss to report to the Fort Worth Office, required her to report to a Branch Chief of a lower grade, and treated her in a hostile and abusive manner do not constitute ultimate employment decisions for the purpose of a retaliation claim. After reviewing the evidence adduced at trial, the court concludes these allegations do not constitute ultimate employment decisions because they do not concern "hiring, granting leave, discharging, promoting, [or] compensation." Dollis, 77 F.3d at 782; see also Mattern, 104 F.3d at 707 (stating "[h]ostility from fellow employees . . . and resulting anxiety, without more, do not constitute ultimate employment decisions"); Messer v. Meno, 130 F.3d 130, 140 (5th Cir. 1997) (criticizing the work and conduct of employee are not adverse employment actions).
The court observes a number of Plaintiff's allegations emanate from her belief that she was treated rudely. Simply put, Title VII is not a general civility code. See, e.g., Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). Justice and judicial economy would have been better served if Plaintiff had ridden her best pony to the race rather than unnecessarily burden the court with complaints that have no chance of success under the law.
Second, the allegations concerning the audit conducted by the Department's Office of the Inspector General do not rise to the level of an ultimate employment decision. Doss contends the audit resulted in false, manipulative, and libelous findings that were critical of her management of the Multifamily Branch during the period covered by the audit. After reviewing the evidence, however, the court determines that the internal audit did not significantly involve Doss. In fact, the final audit report does not mention Doss at all, much less punish or discredit her management ability. These allegations do not constitute an ultimate employment decision because they have no adverse effect on the terms or conditions of her employment. See Watts v. Kroger Co., 170 F.3d 505, 511 (5th Cir. 1999) (explaining that an ultimate employment decision does not occur "where pay, benefits, and levels of responsibility remain the same"); Mattern, 104 F.3d at 708 (stating court may not expand definition of adverse employment action to include "anything which might jeopardize employment in the future") (emphasis in original).
In the same vein, the allegations concerning the derogatory comments made against Doss in an unrelated administrative complaint do not establish an adverse employment action. Doss contends Man Barr, HUD Acting Director of EEO, made libelous statements about her in a Final Agency Decision, dated December 13, 1996. The decision concerns an administrative complaint filed by Michael Freedlund. After reviewing the agency's decision, the court concludes that nothing in the agency's decision affects Doss's "pay, benefits, [or] levels of responsibility." Watts, 170 F.3d at 511. Accordingly, the court concludes these allegations cannot support a claim for retaliation.
Finally, Plaintiff's allegations concerning her performance ratings do not establish actionable adverse employment actions. Doss contends she received a "fully satisfactory" rating instead of an "outstanding" rating on numerous occasions. A "fully satisfactory" rating, however, does not constitute an adverse employment action actionable under Title VII. See Douglas v. Dyn McDermott Petroleum Operations Co., 144 F.3d 364, 374 n. 11 (5th Cir. 1998) (stating "even were we to allow that [a fully satisfactory rating] was `low,' the evidence is insufficient to demonstrate that the evaluation itself constitutes an adverse employment action."); Robinson v. Rubin, 88 F. Supp.2d 784, 790 (S.D. Tex. 1999) (holding "substandard annual evaluation" not an adverse employment action); Dupont-Lauren v. Schneider (USA), Inc., 994 F. Supp. 802, 824 (S.D. Tex. 1998) ("[S]atisfactory but diminished evaluations do not constitute adverse employment actions giving rise to actionable retaliation claims."); see also Mattern, 104 F.3d at 708, (excluding disciplinary filings and reprimands from ultimate employment decisions).
After carefully reviewing all of the allegations contained in Plaintiff's seven administrative complaints and the applicable law, the court concludes that the only retaliatory actions that qualify as ultimate employment decisions are Defendant's failure to promote Doss to the Single-Family Director position, and its failure to promote Doss to the temporary or Acting Single-Family Director position. The court concludes that any allegation not specifically addressed above does not constitute an actionable employment action as a matter of law.
c. "Causal Link"
Finally, the court concludes Doss has established the third element of her prima facie case for each of her two actionable claims. "A `casual link' is established when the evidence demonstrates that `the employer's decision . . . was based in part on knowledge of the employee's protected activity.'" Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, (5th Cir. 2001). When determining whether an adverse employment action was taken as a result of retaliation, the court typically focuses on the final decision maker. See Gee, 289 F.3d at 346. "The statements and actions of ordinary employees are normally not imputable to the employer." Id. (citing Long, 88 F.3d at 306-07). The court may, however, impute to the employer the discriminatory attitudes of a coworker when the coworker exercises substantial influence or leverage over the official decision maker. See Long, 88 F.3d at 307. In making this determination, the court "look[s] to who[m] actually made the decision or caused the decision to be made, not simply to who officially made the decision." Russell, 235 F.3d at 227 (stating "it is appropriate to tag the employer with an employee's [retaliatory] animus if the evidence indicates that the worker possessed leverage, or exerted influence, over the titular decision maker"). The court therefore must determine whether the official decision maker was influenced by the retaliatory animus of those who participated in the alleged harassment or whether the ultimate decision maker based her decision on an independent investigation. See Gee, 289 F.3d at 346 n. 2.
casual link required by the third prong of the prima facie case is not as stringent as the "but for" standard required for an ultimate finding of retaliation. Raggs v. Mississippi Power Light, Co., 278 F.3d 463, 471 (5th Cir. 2001) (citation omitted); Gee v. Principi, 289 F.3d 342, 345 (5th Cir. 2002) (explaining that a plaintiff "need not prove that her protected activity was the sole factor motivating the employer's challenged decision in order to establish the `casual link' element of a prima facie case") (citation omitted).
Based on the evidence adduced at trial, the court holds that Johnson, the official decision maker, was influenced by Babers's retaliatory animus, as set forth in more detail below. For all practical purposes, Johnson made the final decision whether to place Doss in the Single-Family Director position. At the time she made her decision, Johnson was not aware of the administrative complaint filed by Doss in 1990, the 1993 Settlement, or the personality conflict between Doss and Babers. To be sure, Babers had knowledge of Doss's protected activities. Babers was named in the 90-14 Complaint, testified against Doss at her administrative hearing, and later caused the Multifamily employees to file numerous administrative complaints against her. During his visit to Dallas, Salamone met with Doss and Babers, but by no means conducted an independent investigation. Instead, he met with Doss and Babers, individually, and asked if they could reconcile their differences. Babers expressed concern that Doss was unable to cooperate and communicate with him. Doss also expressed reservations about working closely with Babers. Based on these responses, Salamone determined that the turmoil in Dallas could not be resolved; however, Salamone did not discover that much of the turmoil in Dallas was caused by Babers's retaliatory animus. Johnson testified that Doss would have been promoted but for this turmoil. By expressing concern regarding Doss's inability to cooperate, and by creating the turmoil in Dallas, Babers in effect caused Johnson not to select Doss for the Single-Family Director position. See, e.g., Gee, 289 F.3d at 347 (finding comments such as plaintiff "had a problem communicating and getting along well with others" sufficient to create fact issue regarding influence on decision maker).
Johnson also made the final decision regarding the temporary or acting Single-Family Director position. Johnson met with Doss in early 1995. During this meeting, Johnson became aware of Doss's prior administrative complaints and her acrimonious history with Babers. Johnson believed Doss was well-qualified, and based on her discussion with Doss, decided to give her a second chance. Upon her return to Washington, D.C., Johnson proposed to Retsinas that the Department place Doss in the position. Retsinas authorized Johnson to place Doss in the position, with the proviso that the Secretary's Representative and the Area Coordinator approve the placement. Johnson called Weatherford, the Secretary's Representative, and Babers, the Area Coordinator, to obtain their approval. Although Weatherford and Babers initially approved, they withdrew their concurrence a short time later because of the alleged "mixed-race" travel policy, which the court discusses in more detail below. While Johnson did not discuss the alleged "mixed-race" travel policy with Babers directly, she did discuss the alleged policy with Weatherford, who received his information from Babers, Ybarra, and others. As a result, Doss did not receive the promotion. Based on these facts, the court concludes Johnson decided not to select Doss for the temporary or acting Single-Family Director position solely on the opinions of Weatherford and Babers. See Rios, 252 F.3d at 382 ("Where an evaluation is the sole basis or comprises a substantial basis on which the decision maker acts, the evaluation may often constitute sufficient influence to fall under the `rubber stamp' exception."). There is no question that a substantial basis for Johnson's decision rested on information provided to Weatherford by Babers. In essence, Johnson's decision not to promote Doss was merely perfunctory after Weatherford and Babers had withdrawn their consent. Accordingly, the court holds that Doss has established a casual connection between Johnson's decision not to promote her and Babers's retaliatory animus.
2. The Department's Legitimate, Nonretaliatory Explanation for the Challenged Conduct
The court holds that the Department has articulated legitimate, nonretaliatory reasons for the adverse employment actions. According to the Department, Doss was not promoted to the Single-Family Director position because she was uncommunicative, uncooperative, and primarily responsible for the low morale, in-fighting, and turmoil in the Dallas Office. The Department contended that it could not maintain a Single-Family office in Dallas without the expectation that the Single-Family Director would cooperate with the Area Coordinator. The Department further contended that Doss was not promoted because it decided to outstation the Dallas Office from Fort Worth, thus obviating the need for a Director position in Dallas. The Department's stated that it decided to outstation the Dallas Office because (1) it had received complaints from lenders in the commuting area that the Dallas and Fort Worth Offices did not maintain the same lending policies; (2) there was a need to reach grade parity between the Multifamily and Single-Family staffs; and (3) it lacked confidence in the pool of candidates for the Single-Family Director position to manage the Dallas Office.
Shortly after its decision to outstation the Dallas Office, the Department discovered the management arrangement between the two offices was not working, and decided to appoint a temporary or acting Single-Family Director in Dallas. According to the Department, Doss was not selected for this position because she had earlier instituted a "mixed-race" travel policy. Babers and Weatherford believed that such a policy demonstrated Doss's bad judgment. The Department contends that it did not select Doss for the position because Babers and Weatherford did not approve of the decision. The court finds that these reasons, if believed, would permit a trier of fact to conclude that the Department's failure to promote Doss, on each occasion, was nonretaliatory.
3. Unlawful Retaliation
Because the employer has produced evidence of a legitimate, nonretaliatory reason for its decision, the McDonnell Douglas framework drops from the case. See Evans, 246 F.3d at 354; Long, 88 F.3d at 308. At this stage, "the focus shifts to the ultimate question of whether the defendant unlawfully retaliated against the plaintiff." Long, 88 F.3d at 305. To succeed on her claim, Doss must prove by a preponderance of the evidence that the adverse employment action would not have occurred "but for" the protected activity. Rios, 252 F.3d at 380; Long, 88 F.3d at 308. The plaintiff may establish the answer to this question indirectly by showing that the legitimate, nonretaliatory justification offered by the defendant is pretextual. See Reeves, 530 U.S. at 188 (explaining "a plaintiffs prima facie case, combined with sufficient evidence to find that the employer's proffered explanation is false, may permit the trier of fact to conclude that the employer unlawfully discriminated").
"While this portion of the analysis may seem identical to the "casual link" step in the prima facie case, the burden here is more stringent." Medina, 238 F.3d at 674.
The court determines that Babers's actions regarding the Multifamily promotions demonstrated his retaliatory animus against Doss. In early 1994, the Department authorized the field Managers to promote their Multifamily employees if those employees met certain job qualifications. Babers met with Doss and Greene to determine whether the employees should be promoted. After Doss and Greene suggested that the employees receive additional training before being promoted, Babers seized the opportunity to retaliate against Doss. Babers initially expressed agreement with Doss's suggestion that the employees receive additional training. Shortly thereafter, however, Babers met with the affected employees in private and led them to believe that Doss alone held up their promotions, which was not the case. Babers never told the affected employees that he had initially agreed with Doss to conduct training, or more importantly, that Doss had no authority to make the promotions.
Babers's conduct is the classic case of one "throwing a rock and hiding his hand," and the court simply does not countenance such behavior. Instead of stepping up to the plate and acknowledging that he was responsible for the affected employees not being immediately promoted, Babers intentionally shifted the blame to Doss and Greene so that he would appear to be the "good guy." As apparently contemplated, the ire of the affected employees was directed at Doss and Greene. A short time after these meetings with Babers, the affected employees all filed substantially identical EEO complaints against Doss and Greene. Although Babers possessed the final authority to sign off on the promotions, his name was notably absent from the majority of the complaints filed by the affected employees against management. The large number of complaints and the resultant ill-will caused much of the turmoil in Dallas. As for Babers's performance in regarding the delayed promotions, the court notes that he was "slicker than boiled okra." The only plausible explanation for Babers's actions regarding the promotion of the employees, or at least the one that makes the most sense, is that he wanted to set up Doss for failure. Given the fractious history between Doss and Babers (in which no love was lost), the court's observations of their demeanor and testimony, and these particular facts, it requires no quantum leap of logic for the court to conclude that Babers never rebounded from the successful complaint Doss filed against him in 1990, and its subsequent settlement in the summer of 1993.
The court also concludes that the Department's stated reasons for not selecting Doss to the Single-Family Director position were pretextual. The Department contends Doss did not receive the promotion because it had decided to outstation the office from Fort Worth. At trial, the Department offered conflicting testimony to explain the reasons behind its decision to outstation the Dallas Office. Mitchell testified that the Department outstationed the Dallas office because it had received complaints from lenders about differing policies between the two offices. Mitchell further testified that the Dallas Office was outstationed to reach grade parity between Single-Family and Multifamily employees. By contrast, Johnson testified that the Department decided to outstation primarily because of the turmoil in the Dallas office. Johnson further testified that the Department would not have outstationed the Dallas Office had Doss received the Single-Family Director position. The court finds Johnson's testimony more credible, particularly in light of the Department's subsequent decision to assign a temporary or acting Single-Family Director in the Dallas Office. The court therefore concludes that the reasons proffered by the Department not to select Doss for the Single-Family Director position were pretexts for unlawful retaliation.
Similarly, the court concludes that Doss would have received the acting Single-Family Director position but for unlawful retaliation on the part of Babers and Weatherford. By all accounts, the outstation arrangement between the Dallas and Fort Worth Offices was a failure. Ybarra requested that Johnson reconsider her decision not to select a Single-Family Director for the Dallas Office. In response to Ybarra's request, Johnson testified that she met with Doss and decided give her the position. Johnson further testified that Doss did not receive the position because Babers and Weatherford did not approve of her decision. Babers and Weatherford testified that they did not approve of the decision to promote Doss to the temporary or acting Single-Family Director position because Doss had allegedly instituted a "mixed-race" travel policy.
The court believes the testimony regarding the "mixed-race" travel policy was not credible and therefore served as a pretext for retaliation. As stated before, Johnson testified that Babers and Weatherford initially seemed "sort of resigned" about Doss receiving the promotion. They did not, however, immediately express their disapproval. Instead, Weatherford withdrew his consent to promote Doss a short time after his initial conversation with Johnson, stating that he had become aware of some alleged "mixed-race" travel policy in the Dallas Office. As stated before, Weatherford learned of this policy from Babers and Ybarra. The court finds it more than a little suspicious that Weatherford first became aware of the travel policy only after he and Babers discovered Johnson's intention to place Doss in the Acting Single-Family Director position. The court finds this timing particularly troublesome, given the acrimonious history between Doss and Babers, and simply does not believe such timing is coincidental. The court also does not believe it coincidental that Babers once again played a pivotal role in preventing Doss from obtaining a promotion.
The court also finds it suspicious that no Department official conducted an investigation, questioned Doss, discussed the matter with the affected employees, or made any written notes on the subject. In fact, the Department did not produce any documentary evidence to suggest that Doss had instituted such a policy or that any employee had ever complained to management. It is obvious to the court that some in the Department viewed Doss as a problem employee. Given the contentious nature of these allegations, and the history between the parties, the court finds it incomprehensible that the Department would not have thoroughly investigated the alleged "mixed-race" travel policy, particularly because it was the basis for denying Doss the position.
Moreover, T. Smith and Briscoe, two witnesses who worked under Doss's supervision, testified they had never heard of such a policy. Warsheck testified that Doss had instituted a mixed-race travel policy, and that he was "surprised" by it, but stated that he never bothered to complain to management. Warsheck further testified that the institution of the alleged policy never affected his travel plans. Higgenbotham was perhaps the only employee who complained about the policy to Babers or Ybarra; however, she did not testify at trial, and her recollections, as told by Babers and Ybarra, constitute hearsay testimony, not properly admitted evidence. The court finds the testimony of Babers, Ybarra, and Warsheck less credible than the testimony offered by Plaintiff and her witnesses with regard to the "mixed-race" travel policy. In particular, the court was left with the distinct impression that Babers was less than forthcoming. The court's impression is based on his demeanor in giving testimony, his actual testimony, the court's contemporaneous notes, and that his version of events regarding the "mixed-race" travel policy differed in material respect from the versions of other witnesses. Babers's proclivity to be less than forthcoming was borne out in substantial part by the way he handled the promotions of the Multifamily employees.
The court's contemporaneous notes of Babers's testimony describe him as "cagey," "less than forthcoming," and appearing "not to remember details as well as others who testified."
Based on a preponderance of the evidence, the court concludes that Defendant's assertion that Doss instituted this alleged "mixed-race" travel policy was a cover for its retaliatory animus. See Reeves, 530 U.S. at 188 ("Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive."). Based on the foregoing analysis and a preponderance of the evidence, the court concludes that Doss was not promoted to the Single-Family Director position or the acting Single-Family Director position because she had engaged in protected activities. Having heard the testimony and observed the demeanor of the witnesses and the parties, the court is convinced and left with the indelible impression that several Department officials took steps to ensure that Doss did not receive the positions she sought because of the complaint Doss filed in 1990 and its subsequent resolution in her favor in the summer of 1993. Merely reading the transcript and papers filed in this case does not allow one to see the full picture. The picture become clear only after one observes the demeanor of the witnesses and gets the full flavor of what had taken place. The court was able to obtain this in depth understanding of the events in question after hearing testimony and observing the demeanor of the witnesses for two weeks. In common street parlance, Doss "upped" the Department with her earlier successful complaint, and certain officials in the Department still smart from Doss's victory. In sum, the court concludes that the Department, through the retaliatory actions of Babers and others, caused Johnson not to select Doss for either position. Accordingly, the court concludes the totality of the evidence supports a finding of retaliation.
B. Race and Sex Discrimination
Under Title VII, it is "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to [his] compensation, terms, conditions, or privileges of employment, because of such individual's race. . . ." 42 U.S.C. § 2000e2-(a)(1). A plaintiff may prove her Title VII claim based on direct evidence or by using the indirect McDonnell Douglas method of proof. See LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 448 (5th Cir. 1996). Byers v. Dallas Morning News, Inc., 209 F.3d 419, 425-26 (5th Cir. 2000); Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000). Plaintiff did not offer any direct evidence of race or sex discrimination at trial. The court therefore examines Plaintiff's claims under the McDonnell Douglas framework.
To establish a prima facie case of racial or sex discrimination, Plaintiff must demonstrate that (1) she was a member of a protected class, (2) she was qualified for the position she lost, (3) she suffered an adverse employment action, and (4) that others similarly situated were more favorably treated. See Urbano v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir. 1998); see also Rutherford v. Harris County, Tex., 197 F.3d 179-80 (5th Cir. 1999); Shackleford v. Deloitte Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999); Ward v. Bechtel Corp., 102 F.3d 199, 202 (5th Cir. 1997).
At the outset, the court concludes that the majority of the allegations contained in Plaintiff's seven administrative complaints does not establish adverse employment actions. The court analyzed each of Doss's allegations in the context of her retaliation claims, and thus need not repeat the analysis here. For the reasons stated above, the court concludes that the Department's failure to promote Doss to the Single-Family Director position and its subsequent decision not to assign her into the temporary or acting Single-Family Director position constitute the only actionable adverse employment actions. All of Doss's remaining claims fail as a matter of law for the reasons stated above.
With regard to Plaintiff's remaining actionable claims, the court has reviewed the evidence adduced at trial and concludes that Doss has not proved intentional discrimination based on race or sex. The court determines that Plaintiff proved her prima facie case, and that Defendant articulated legitimate, nonretaliatory reasons for its actions on each claim; therefore, the court must address the ultimate question of whether the record contains sufficient evidence to support a finding of intentional discrimination based on race or sex. See, e.g., Raggs, 278 F.3d at 468. In reviewing the record of this case, the court finds very little, if any, evidence that supports an inference of intentional discrimination based on race or sex. See Rubinstein, 218 F.3d at 400 ("While we are mindful of the Supreme Court's recent admonition that Title VII plaintiff's need not always present evidence above and beyond the prima facie case and pretext, discrimination suits still require evidence of discrimination."). In any event, no evidence in the record establishes that race or sex was a motivating or determinative factor in the Department's refusal to promote Doss to either position. Accordingly, the court concludes Doss has not proved by a preponderance of the evidence that the Department discriminated against her on the bases of race or sex.
C. Damages
One of the primary purposes of Title VII is "to make persons whole for injuries suffered on account of unlawful employment discrimination." Albermarle Paper Co. v. Moody, 422 U.S. 405, 418, 421 (1975) (explaining a presumption in favor of full relief arises when a plaintiff has established she was the victim of unlawful discrimination). Section 706(g) of Title VII authorizes a district court to order such affirmative action as may be deemed appropriate, including, but not limited to, reinstatement or hiring of employees, with or without back pay and other equitable relief the court deems adequate. 42 U.S.C. § 2000e-5(g). The Civil Rights Act of 1991 also provides for compensatory damages when an employer engages in unlawful intentional employment discrimination. 42 U.S.C. § 1981a(a)(1). Compensatory damages under this section may include such nonpecuniary losses as emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses. See Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 808 (5th Cir. 1996).
Having found that the Plaintiff was denied the Single-Family Director position as a result of the Department's unlawful retaliation, the court concludes that damages are appropriate. Given the age of this case, and the time that has transpired since the time of trial, the court believes it necessary to receive additional evidence on the issue of damages. Specifically, the court will receive evidence on the proper amount of back pay, front pay, and whether reinstatement is appropriate given the circumstances of this case. The parties should be prepared to address Doss's current position, her current grade and rate of pay, benefits, and any other positions she held since the time of trial; however, the court will neither hear nor receive any further evidence on the issue of compensatory damages. The court hereby orders that the parties, and any witnesses, appear for an evidentiary hearing regarding these matters on August 12, 2002, at 3:00 p.m.
III. Conclusion
For the reasons stated herein, the court finds that Plaintiff has proved by a preponderance of the evidence that she was not promoted to the Single-Family Director position or the Acting Single-Family Director position because of the Department's unlawful retaliation. The court will conduct an evidentiary hearing on the issue of damages on August 12, 2002, at 3:00 p.m. The court will determine the amount of damages and enter judgment based on the evidence it receives at the hearing and that is already set forth in the record.
It is so ordered.