Jury Award Against Pursuant On Hold

August 6, 2013       Mark Hrywna      

A night cap after an industry conference led to not only allegations of inappropriate behavior but eventually resulted in a nearly $200,000 jury verdict against one of the nation’s largest fundraising agencies. The Pursuant Group, accused by former executive Philip Capps of retaliation after he filed complaints with the Equal Employment Opportunity Commission (EEOC), has asked a judge to set aside the entire judgment, which is not legal until a judge enters it.

The motion might lay the groundwork for filing an official appeal by the Dallas, Texas-based firm if it’s denied.

In a May 24 judgment by a jury in U.S. District Court, Northern District of Texas, Dallas Division, Capps was awarded:

  • $70,000 in back pay and benefits;
  • $25,000 for emotional pain and suffering, mental anguish, loss of enjoyment of life, loss of seniority, expenses related to job search, and loss of reputation; and,
  • $100,000 in punitive damages.

Pursuant “made every reasonable effort to resolve this dispute to Mr. Capps’ satisfaction,” according to a statement provided through Pursuant’s attorney, Stephen Key of Key Harrington Barnes. Capps was seeking $1.8 million in damages — including $1 million in punitive damages — which made “settlement impossible,” he said.

Capps referred inquiries to his attorney, Justin Jeter of Mathis, Donheiser & Jeter, who presented evidence for “front pay” damages in late July just before the response to Key’s motion. The jury can only award compensatory, back pay and punitive damages, Jeter said, but assuming a win, a judge also can award front pay and attorneys’ fees.

Front pay is the difference between what Capps would have earned in his previous position and his current position. Jeter said front pay can go as far into the future as a judge wants to take it.

The verdict in May climaxed more than a year of litigation that started in May 2012 when Capps filed a complaint with the EEOC.

Capps, who now works as a regional sales director at IBM, was hired in March 2011 to be Pursuant’s senior vice president of sales. He and several co-workers were at a bar during an industry conference in October 2011. It is alleged in court documents that Capps and Gary Cole, Pursuant’s executive vice president of consulting, took each other’s cell phones and Cole sent “inappropriate texts” to others, including some Pursuant employees. Later, while at the rooftop lounge, Cole would not stop making hand gestures simulating masturbation to Capps as well as his wife and son. “To be clear, he performed this act to each person individually and over repeated objections,” according to court documents.

Capps reported the incident, at the urging of two other female employees, to CEO Trent Ricker, who “immediately addressed the inappropriate behavior of all involved. The matter was considered resolved,” according to Pursuant’s original complaint and request for declaratory judgment. Capps, in his counterclaim, denied that Ricker immediately addressed it or resolved the situation.

In February 2012, Capps and the firm began discussion about changing his pay, with a compensation plan that could increase his salary at least $100,000. Capps rejected the proposal and insisted on an executive vice president title. Pursuant claimed in court documents that it never presented more than an “illusory ‘rough draft.’”

“Both Mr. Capps and his attorney unequivocally communicated that Mr. Capps no longer desired to work for the Pursuant Group. Shortly thereafter, the company discovered that Mr. Capps was forwarding hundreds of pages of highly confidential information from the company’s server to his personal email account,” Pursuant’s statement continued in part. “The congruence of these realities left the company with no choice but to place Mr. Capps on leave until such time as the details of his exit could be worked out with his attorney.”

Capps lodged complaints beginning in April 2012 and began forwarding emails to his personal email account for “reasons unrelated to Pursuant’s business,” though the company claimed it was confidential information that he began to forward. In court documents, the company claimed that Capps “repeatedly threatened to bring ‘embarrassing’ and ‘harmful’ litigation,” including naming key executives as defendants, unless it made “satisfactory payments” to him.

Capps emailed Pursuant COO Ross Miller and the Board of Directors claiming that he was being denied a pay raise because of his complaint to Ricker about the actions during the October conference. Within days of filing the claim, Capps alleged he was berated and cursed at and then suspended.

Capps filed a charge of retaliation with the EEOC in May 2012 after which he was placed on unpaid leave and Pursuant sued him, soon after suspending him without pay “indefinitely.”

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