Pursuant, Former Exec Continue Nasty Court Battle

September 15, 2013       Mark Hrywna      

One of the largest fundraising agencies in the country and a former executive are squaring off in court over claims of retaliation after complaints arising from an incident at an industry conference almost two years ago. Executives at The Pursuant Group in Dallas, Texas, were accused of retaliation by its former senior vice president of sales, Philip Capps, after he filed complaints last year with the Equal Employment Opportunity Commission (EEOC).

In May, a jury in U.S. District Court, Northern District of Texas, Dallas Division, awarded Capps $70,000 in back pay and benefits, $25,000 for emotional pain and suffering, and another $100,000 in punitive damages. A judge last month denied a motion by Pursuant asking to set aside the $195,000 award and also awarded Capps another $131,255 in front pay. In total, that’s $326,255 Capps has been awarded by the courts.

Pursuant, an agency to faith-based organizations primarily, can and might still appeal. And, Justin Jeter of Mathis, Donheiser & Jeter, the attorney for Capps, planned to file a motion seeking attorneys’ fees.

Pursuant’s attorney, Stephen Key of Key Harrington Barnes, said it is not yet decided whether to file an appeal or ask the judge to reconsider a motion to set aside the judgment. The final judgment had not been entered as of presstime and it’s unclear when Judge Reed O’Connor might take that step. Key said it could come sometime this month.

Capps, who joined Pursuant in March 2011, was at a bar with co-workers during an annual industry conference in October 2011. That’s about all that the two sides agree on regarding what happened that night.

In court documents, Capps alleged that he and Pursuant’s executive vice president of consulting, Gary Cole, took each other’s cell phones and Cole sent “inappropriate texts” to some Pursuant employees including Chief Executive Officer Trent Ricker. Capps claimed that Cole would not stop making inappropriate, sexual hand gestures at Capps, his wife and their son. Capps would later report the incident to Ricker at the urging of other employees, he claimed.

Other Pursuant employees testified that there were no inappropriate hand gestures by Cole nor did they urge Capps to report the incident to higher-ups as he claimed they did. According to portions of testimony provided by Pursuant’s attorney, it was Capps’ adult son who sent inappropriate texts to Ricker from Cole’s cell phone. Cole “categorically denies” sending any texts on Capps’ phone, something corroborated by a forensic examination of the phone, according to Key.

In February 2012, Pursuant executives and Capps began a discussion about increasing his salary, with incentives of more than $100,000. Capps rejected the proposal, insisting on a title of executive vice president and salary increase of $200,000, Key said.

In April 2012, Capps had reported the conference incident to Ricker, and later to Chief Operating Officer Ross Miller, board Chair Jon Halbert and Jon Williams, senior vice president in charge of human resources. Capps claimed he was being denied a pay raise because of his complaint to Ricker about the October conference. 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.”

Capps claimed in court documents that Halbert forwarded his concerns to Ricker –one of the people Capps identified as retaliating against him. Key said that’s false, countering that Pursuant executives handled his complaints properly, sending them to the appropriate departments to conduct an investigation and to involve legal counsel.

Text messages referring to Capps as a “loser” and discussing “throwing Capps down an ‘elevator shaft,’” were not sent in the context of reports of retaliation or sexual harassment, according to Key, but rather after litigation had begun. Ricker requested advice from human resources on Capps’ termination after he refused to participate in “exhaustive efforts to repair broken relationships with his peers,” Key said, insisting that Ricker “went to great lengths” to do that but “simply lost confidence in him as a leader.”

Capps began forwarding emails to his personal email account for “reasons unrelated to Pursuant’s business,” he claimed in court documents, though the company believes it was confidential information that he began to forward. Key called the case a “carefully planned and well-executed exit strategy by Mr. Capps to maximize his financial position once he feared his job was in jeopardy.”  NPT