UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JEFFREY KAPCHE, : : Plaintiff, : : v. : Civil Action No. 07-2093 (JR) : ERIC HOLDER, Attorney General of : the United States, : : Defendant. :

MEMORANDUM

After a jury returned a verdict in favor of Jeffrey

Kapche on his claim of discrimination and violation of the

Rehabilitation Act on May 20, 2009, awarding him compensatory

damages of $100,000, the parties turned their attention to the

question of what equitable remedy, if any, would be awarded the

plaintiff under the “make whole” rubric applied in employment

discrimination cases.1 On 10/21/09, I heard evidence and

argument on plaintiff’s motion for back pay and either

instatement or front pay. The parties submitted pre-hearing

briefs and supplemental materials following the hearing. Those

papers, and the testimony taken at the October 21 hearing, deal

mostly with the FBI’s position that plaintiff is entitled to no

equitable relief after March 1, 2007, the date on which the FBI

revoked its conditional offer of employment upon a finding of

1 The equitable remedy process was delayed for four months by the briefing and decision of a defense motion for judgment as a matter of law [#104] that was denied on 9/11/2009 [#113]. lack of candor in plaintiff’s application process. A secondary

issue, not dealt with at the October 21 hearing but subsequently

briefed by the parties, is whether, between the date on which the

FBI was found to have discriminated against him and March 1,

2007, plaintiff suffered any actual economic damages compensable

by an equitable remedy.

1. The McKennon defense

McKennon v. Nashville Banner Pub. Co.,

(1995), applied in this Circuit by Castle v. Reuben,

(D.C. Cir. 1996), established that a district court

may deny instatement, front pay and full back pay when the

employer has presented after-acquired evidence of misconduct “of

such severity that the employee in fact would have been

terminated on those grounds alone if the employer had known of it

at the time of the discharge.” McKennon,

.

In this case, the FBI was reconsidering its decision

not to hire plaintiff because of his diabetes regimen, as a way

of resolving his (then) internal discrimination complaint.

During the Personnel Security Interview (“PSI”) that was part of

that reconsideration process, plaintiff represented that he had

not been disciplined by any of his former employers. The FBI,

however, learned in a follow-up inquiry that plaintiff had failed

to cooperate with an investigation into an incident involving the

unauthorized pumping of gasoline from the tank of his then-

- 2 - employer, the Fort Bend County Sheriff’s Office, until he was

advised that his continuing denial of misconduct might lead to a

polygraph examination, and that plaintiff had been subsequently

suspended without pay for some two weeks and placed on

disciplinary probation for 180 days. After confronting plaintiff

with this information, the FBI determined that the explanation

plaintiff gave to it (the FBI) for why he took the gasoline

contradicted the explanation he had given to his supervisors at

the Fort Bend County Sheriff’s Office. At that point, the FBI

determined that plaintiff was unsuitable for employment as an FBI

Special Agent because of “lack of candor” and revoked its

conditional offer of employment.

Plaintiff first took the position [see #117] that the

FBI’s after-acquired evidence argument could not be heard because

it was an alternative defense “never pled” and the witnesses

relevant to the defense were not timely disclosed. But the FBI’s

amended answer [#23] sufficiently alleged the defense. And

plaintiff has not asserted and cannot assert that he was

surprised by the after-acquired evidence defense: it was the

subject of active pretrial discovery and indeed was the subject

of a successful motion in limine to exclude the testimony of the

very witnesses who knew about the after-acquired evidence. See

[#79].

- 3 - Plaintiff now makes a series of arguments that the

McKennon defense does not apply in this case. First, he argues

that the FBI must show that it was its actual practice - not just

its stated policy - to refuse Special Agent employment to a

person who conducted himself as Kapche did. Second, plaintiff

argues that the FBI was precluded from raising the McKennon

defense because the gasoline incident and plaintiff’s failure to

disclose it were a “direct result” of the unlawful

discrimination. Finally, plaintiff argues that the defense is

not applicable in refusal to hire cases because McKennon involved

only pre-termination misconduct. [#117].

As to the first of these arguments: No evidence was

adduced, either at the trial or at the evidentiary hearing on

equitable relief, that supported plaintiff’s suggestion that the

FBI applied its “lack of candor” policy arbitrarily, or

discriminatorily.2 I decline to embark on a whole new round of

discovery and to conduct what would amount to another trial of

this ancillary issue.3

2 During and after the 10/21/09 hearing, plaintiff relied heavily on the fact that he “passed” a polygraph examination, arguing that it mitigated against a “lack of candor” finding and that it showed the FBI did not comply with its own policies. [#127] At plaintiff’s urging, I ordered the FBI to produce an unredacted version of the test document for my review in camera. I found nothing to suggest that the FBI applied its policies arbitrarily or discriminatorily. 3 Although there had been substantial discovery on the after-acquired defense, plaintiff wanted more, including the

- 4 - Plaintiff’s second, “direct result” argument confuses

“direct result” with “but-for” causation. It may be true that,

“but-for” the FBI’s discrimination, plaintiff would not still

have been employed at the Fort Bend Sheriff’s Office at the time

he took the gasoline. There is no causal link, however. In the

one case plaintiff cites to support this argument, the misconduct

in question occurred at a hearing “occasioned by plaintiff’s

termination.” Medlock v. Ortho Biotech, Inc.,

(10th Cir. 1999). Here, plaintiff’s misconduct was unrelated to

the discrimination.

On the third argument: McKennon does deal with pre-

termination misconduct, but plaintiff offers no convincing

explanation of why its rationale would not apply to refusal to

hire or reinstatement cases as well. See Sellers v. Mineta,

(8th Cir. 2004) (no front pay where plaintiff’s own

post-termination misconduct prevented her from obtaining the

“traditional remedy of reinstatement”).

The FBI presented more than enough evidence to

establish that its refusal to hire decision was made in good

faith and driven by its suitability guidelines. The guidelines

FBI’s practice with similarly situated applicants, depositions of the two individuals that authored the so-called “lack of candor” memorandum, information about the people who were allegedly “call[ing] the shots” on the hiring decision in the Office of General Counsel, and depositions of other potentially relevant witnesses. [#117].

- 5 - state that deliberate omissions may be disqualifying, absent

mitigating circumstances. [#127, Ex. B]. Two witnesses from the

FBI’s Applicant Adjudication Unit who were responsible for

overseeing Plaintiff’s application process - Sharon Magargle and

Bonnie Adams - testified that applicants who demonstrate a lack

of candor are unsuitable for employment under the guidelines.

[#122 at 132, 234]. A witness from the FBI’s Office of

Professional Responsibility (“OPR”), Brian Chehock, testified

that Special Agents who make misrepresentations on employment

forms or otherwise demonstrate a lack of candor are not suitable

for employment in the first place, or, if they are “on-board”

employees, are subject to dismissal. He testified that this

conduct would make an agent Giglio-impaired, meaning that he or

she would be hindered or precluded from testifying at trial.

[#122 at 250-253].4 None of this evidence was rebutted.

The FBI properly invoked the after-acquired evidence

defense. Plaintiff will not have the remedies of instatement or

front pay.

4 Plaintiff makes much of the fact that he never had access to the FBI contract employee, Tracy Johnson, who first made the “lack of candor” decision. Her memorandum laying out all the factors for her decision, however, and the testimony of the FBI employees who were ultimately responsible for the decision - Magargle and Adams - is a sufficient demonstration of good faith. Margargle testified that this adjudication decision was “not a close call to [her] at all.” [#122 at 234].

- 6 - 2. Back pay

Plaintiff’s entitlement to back pay – if any – is only

for the period from January 23, 2005 - the date the FBI started

discriminating against him - to March 1, 2007 - the date of the

refusal to hire because of after-acquired evidence.

The FBI’s expert, Dr. William Carrington, calculated

that the sum of plaintiff’s income from his employment at the

Fort Bend County Sheriff’s Office and from other employers

between January 23, 2005 and March 1, 2007, plus the retirement

benefits accrued during this time, was $150,322 [#125, at ¶ 45];

and that, if plaintiff had been employed by the FBI, which

required a year of training at Quantico, adherence to a rigid pay

step system, and adherence to the its policy of not placing

Special Agents in their hometown offices, he would have earned

$11,934 less. [#125, at ¶ 61].

Plaintiff’s expert, Dr. Amy McCarthy, disputed that

calculation and asserted that plaintiff is entitled to between

$43,350 to $38,871 in back pay, [#126, Exhibit A], but

Dr. Carrington pointed out two errors in Dr. McCarthy’s

calculation that account for the difference: (1) she included

$27,000 in Federal Employee Retirement System benefits that would

not have accrued to plaintiff because the statute requires

federal employees to complete five years of service before

retaining any retirement benefits,

; and (2) she

- 7 - pushed the benefits of the above-market guaranteed return on

plaintiff’s seven percent contribution to the Texas County and

District Retirement System into the future. [#130]. After

adjustment for those errors, Dr. McCarthy’s calculation would

also result in a negative back pay figure. Plaintiff never

responded to Dr. Carrington’s critique of Dr. McCarthy, except

for his motion to strike the response as untimely (or, in the

alternative, for an additional seven days to respond, [#131], but

plaintiff has made no subsequent filings in the five months that

have passed since then). I find that Dr. Carrington’s

calculation of back pay is accurate, and that plaintiff is

entitled to no back pay.

An appropriate order accompanies this memorandum.

JAMES ROBERTSON United States District Judge

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