ruling. The circumstances of an intermittent employee and a permanent employee are sufficiently different that in order to place plaintiff, as nearly as possible, in the position she would have been in but for the discrimination, it was necessary to offer participation in the insurance and savings benefit plans at the time of the offer of reinstatement, in September 1989. Moreover, plaintiff's back pay award should have included amounts to compensate her for losses due to not having life and health insurance plans, and for benefits she would have received through participation in the Federal Employees Retirement System ("FERS") and the Thrift Savings Plan ("TSP").
Finally, although technical in nature, the INS failed to comply with the timing requirements in cases of discrimination by a federal agency. First, the INS failed to complete its investigation and determination of the EEO complaint within the 180 day limit. See 29 C.F.R. § 1613.220(a). Rather, the agency evaluation process consumed two and one half years. Second, the agency regulations require completion of corrective action within sixty days after the final EEOC decision. § 1613.237(c); supra note 6. In this case, the corrective action is still not completed almost seven years after the EEOC decision was rendered, and eleven years after the discrimination occurred. Third, the EEOC order requires that a report detailing the corrective action completed be provided to the EEOC within sixty days of the decision. This completion report still had not been filed as of the date of trial.
Based upon the foregoing, the court concludes that the INS did not take the remedial actions required by the EEOC order; therefore, the INS failed to Comply with the EEOC order.
B. Retaliatory Discharge
A prima facie case of retaliation may be established by showing "participation in protected activity known to the defendant, an employment action disadvantaging the person engaged in the protected activity, and a causal connection between the protected activity and the adverse employment action." Johnson v. Palma, 931 F.2d 203, 207 (2d Cir. 1991). Once plaintiff establishes a prima facie case, the defendant has the burden of producing evidence of a legitimate, nondiscriminatory reason for the employment action. Id. If defendant meets this burden, then plaintiff must establish that the proffered legitimate reason was pretextual. Id.
First, the INS certainly knew of plaintiff's protected EEO activity. Second, the INS termination of plaintiff's employment was disadvantaging to plaintiff. Third, plaintiff has established a causal connection between her EEO activity and her termination from INS employment. Plaintiff pressed the INS continuously from the time of the EEOC favorable decision in August 1989 until this suit was filed to fully comply with the EEOC make whole remedy. INS's reluctance and refusals to take the appropriate remedial actions forced plaintiff to insist upon what was her due. Some portions of the make whole remedy which plaintiff's persistence led INS to provide include a full back pay award,
interest on back pay,
and immigration officer training. Other components of appropriate remedial action remain unprovided, such as insurance benefits, participation in the thrift savings plan, and opportunity for transfer and promotion. The INS has, from the beginning, fought compliance with the EEOC order.
Thus, plaintiff's termination was concurrent with her attempts to obtain compliance, and the termination theoretically cut off INS's need to comply with the order. Plaintiff has established each element of a prima facie case.
The INS proffers two legitimate reasons for the termination. First, INS claims that plaintiff had excessive unauthorized absences. Second, INS cites noncompliance with its policies and instructions. The INS therefore argues that terminating plaintiff was necessary for work scheduling and planning.
Plaintiff has shown that these reasons for her termination were merely pretext for retaliating against her EEO activity. From October 1989 until the time of her termination in December 1991 plaintiff repeatedly requested leaves of absence--first a maternity leave, then leaves without pay. The INS intermittently approved these leaves of absence, or denied them and ordered plaintiff to report for duty at the port of Champlain. After acquiescence to plaintiff's failure to report for duty as "ordered" for more than two years, the INS is now estopped from claiming that this failure is a legitimate ground for terminating plaintiff. Nor can INS claim that after two years of leaves of absence and plaintiff not following orders to report for work, that her failure to report for work in August 1991 was so significant that termination was necessary for work scheduling and planning.
Additionally, the INS was well aware of plaintiff's relocation, and would have helped effect a transfer for any other employee in the position plaintiff would have been in but for the discrimination.
The foot-dragging that INS exhibited in the areas of the EEOC order with which it did comply also indicates that the proffered reasons for plaintiff's termination were pretextual, and that the true reasons were plaintiff's EEO activity and a method of avoiding compliance with the EEOC order.
Finally, the INS's failure to fully comply with the August 1989 EEOC order justifies plaintiff's failure to report to the port of Champlain. The INS simply cannot claim that while it continued to refuse plaintiff's requests for compliance with the EEOC make whole remedy,
plaintiff was required to report for duty in accordance with a non-complying job offer. See Claiborne, 583 F.2d at 153. Plaintiff was not required to accept a conditional job offer or forfeit the remedy ordered by the EEOC. Failure to report for the GS-9 position in Champlain may reflect a failure of plaintiff to mitigate her damages, but it does not bear on the merits of her claim. See Babrocky v. Jewel Food Co., 773 F.2d 857, 868 (7th Cir. 1985); Claiborne, 583 F.2d at 153. Moreover, it was appropriate for plaintiff to accept the non-complying offer to preserve her position with the INS, and then attempt to work out compliance, particularly in light of the immediate commencement of her leave status and her knowledge of other employees' transfers.
In sum, while plaintiff was attempting to obtain the full remedy ordered by EEOC, the INS did its utmost to avoid compliance. Finally, the INS retaliated against the plaintiff for her protected activity and terminated her on December 13, 1991.
The court may order back pay, reinstatement, and "any other equitable relief as the court deems appropriate." 42 U.S.C. § 2000e-5(g). Any order for back pay must be reduced by "interim earnings or amounts earnable with reasonable diligence." Id. The burden is upon the defendant to prove that the discriminatee failed to mitigate damages. Clarke v. Frank, 960 F.2d 1146, 1152 (2d Cir. 1992); Bonura v. Chase Manhattan Bank, N.A., 629 F. Supp. 353, 356 (S.D.N.Y. 1986). A defendant "'must show that the course of conduct plaintiff actually followed was so deficient as to constitute an unreasonable failure to seek employment'" in order to meet its "extremely high" burden of proving failure to mitigate. Bonura, 629 F. Supp. at 356 (quoting EEOC v. Kallir, Philips, Ross, Inc., 420 F. Supp. 919, 925 (S.D.N.Y. 1976), aff'd, 559 F.2d 1203 (2d Cir.), cert. denied, 434 U.S. 920, 54 L. Ed. 2d 277, 98 S. Ct. 395 (1977)). A back pay award must include lost fringe benefits, such as insurance and pension, in addition to lost earnings. 28 C.F.R. Pt. 1613, App. A.
In this case the defendants failed to put forth any evidence which might show that plaintiff failed to mitigate her damages after her termination on December 13, 1991. Thus, the defendants failed to meet their burden and the court will award back pay. Because plaintiff was paid for certain periods prior to her termination on December 13, 1991, and during the other periods she was on leave without pay status at her request, n22 the court finds that the award of back pay will begin on the date of plaintiff's official termination, December 13, 1991, and continue up to the time of reinstatement. The court finds that but for the discrimination the plaintiff would have received a transfer to Georgia prior to 1991, and a transfer to Boston, Massachusetts in 1992. The court further finds that the plaintiff would have earned the salaries listed in the chart below but for the discrimination.
Time Period Lost Earnings
12/13/91 to 12/31/91 $ 1,178.67
1/1/92 to 12/31/92 30,109.54
1/1/93 to 12/31/93 31,493.00
1/1/94 to 12/31/94 33,907.33
1/1/95 to 12/31/95 35,375.00
1/1/96 to 6/30/96 21,973.00
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