Arbas v. PhyAmerica Government Services, Inc., U.S. District Court, Eastern Dist. Va, April 2019.
Catherine Arbas was employed as an art therapist by PhyAmerica Government Services, Inc. and contracted to work at the Womak Army Medical Center for the United States Department of the Army. On October 30, 2016, Arbas informed her direct supervisor, Joseph Newcomb, that she was sexually harassed by Dr. Zambrano, an Army doctor in a higher position than Arbas. After reporting the incident, Arbas was subject to “constant hostility” from Army superiors and supervisors. This hostility included reduced hours, interference with art therapy services, ignoring Arbas’s presence and attempts to converse with supervisors, condescending comments from supervisors, and unmanageable schedule demands.
In August 2017, Arbas informed Newcomb, Commander Klimp, and another supervisor that she was working in a hostile work environment as a result of reporting Dr. Zambrano. After that, PhyAmerica reduced Arbas’s work from 40 to 25 hours per week. On two occasions Newcomb refused to sign time sheets for Arbas, which prevented her from being paid. Commander Klimp also failed to respond to her requests for a copy of her sexual harassment paperwork and to move forward with any investigation of the matter. On September 6, 2017, Arbas reported these issues with the Army to Valerie Pichardo and Brandon Ross, supervisors at PhyAmerica. She also contacted Tausha Carter, another PhyAmerica supervisor, on September 8, 2017, regarding the sexual harassment report and Arbas’s request for help with the investigation, but Carter “strongly recommended” that Arbas not make any trouble for the Army if she wanted to keep her job. Arbas responded that she would file an EEOC complaint as a result of the actions taken against her since her sexual harassment report. PhyAmerica terminated Arbas on September 29, 2017, claiming that she committed a HIPAA violation, which Arbas denied.
After being subjected to the hostile work environment, Arbas experienced almost daily nightmares, depression, paranoia, decreased appetite, and anxiety and saw a doctor for stress and emotional issues. Arbas filed suit against PhyAmerica claiming PhyAmerica retaliated against her.
Under Title VII of the Civil Rights Act, it is unlawful for an employer to discriminate against an employee because the employee opposed an unlawful practice. To establish a claim of retaliation, an employee must show that (1) she engaged in a protected activity, (2) her employer took an adverse employment action against her, and (3) there was a causal link between the two events. Then, the burden shifts to the employer to articulate a legitimate, non-retaliatory reason for the adverse employment action. The employee then has the burden of demonstrating that the proffered non-retaliatory reason is a mere pretext.
The court found that Arbas established a prima facie case of retaliation and PhyAmerica did not offer a legitimate non-retaliatory justification for the adverse employment action. Finding for Arbas, the court determined that Arbas satisfied the first prong when she reported Dr. Zambrano’s sexual harassment and the ensuing hostile work environment to her Army supervisors and to PhyAmerica. Additionally, the second prong was satisfied, because PhyAmerica significantly reduced Arbas’s hours and ultimately terminated her. Both termination and reduction in hours are considered adverse employment actions. Finally, the third prong was satisfied, because the adverse employment actions were casually connected to Arbas’s reports of the incidents. Arbas was terminated 20 days after reporting the hostile work environment and lack of investigation to PhyAmerica and such close temporal proximity is sufficient to establish causation for retaliation.
The court then considered damages and determined that Arbas was entitled to backpay and compensatory damages, but not front pay. Prevailing employees are entitled to backpay that would have accrued from the time of the wrongful discharge through the time the court “might reinstate the employee.” However, an employee has a duty to mitigate damages, which requires reasonable diligent efforts to seek and accept new employment substantially equivalent to that from which she was discharged. While Arbas sought new employment, she remained unemployed since her termination. The court granted Arbas approximately $115,000 in backpay, the amount she would have earned in wages and benefits had she remained employed by PhyAmerica.
An employee may also be entitled to compensatory damages for emotional distress, if she indicates “with specificity” how the distress manifested itself and shows a causal connection between the employer’s violation and her emotional distress. Based on Arbas’s statement regarding the emotional and physical changes she experienced following her termination from PhyAmerica, the court granted her an award of $50,000 in compensatory damages.
Front pay is money awarded for lost compensation during the period between judgment and reinstatement, or in lieu of reinstatement, and is awarded based on a court’s discretion. Since an award of front pay requires speculation as to future events, courts must “judiciously scrutinize” the record to determine whether future events can be predicted sufficiently to award front pay. When determining whether to award front pay, courts consider factors such as the plaintiff’s prospect of obtaining comparable employment, the time period of the award, whether the plaintiff intended to work, and whether liquidated damages have been awarded. While Arbas requested 6 months of front pay, the court determined that she did not explain her estimation of her job prospects or provide a detailed explanation of her job search process. The court stated that without that information, it was unable to evaluate Arbas’s intention to work or her prospect of obtaining comparable employment, and, thus, declined to award front pay.
Employers must always be cautious when terminating employees that have engaged in a protected activity. The employer must have a separate and distinct basis for firing the employee, and evidence of this basis should be clearly detailed in the employee’s file. As was showcased here, terminating an employee, or even cutting her hours, within a close timeframe (such as 20 days) to the employee reporting unlawful behavior may support the employee’s claim of retaliation. Employers should always refrain from retaliating against employees who have engaged in protected activity, but also use caution to ensure termination decisions do not appear to be retaliatory. This case also emphasizes the costs that may be associated with retaliation, or apparent retaliation of an employee. When considering backpay, compensatory damages, and sometimes front pay, damages awarded to plaintiffs to be paid by the employer can be significant.
If you need more guidance or information, contact the employment law experts at General Counsel, PC today at 202-360-4230. Attorneys at General Counsel, PC are specialized in labor and employment law and have experience working with business owners and individuals across Virginia, specifically in Fairfax County, Arlington, Loudoun County, and Prince William.