Judge Orders Pursuant To Pay Another $131K

A Dallas, Texas-based fundraising agency has been ordered to pay more than $130,000 in front pay to a former executive who accused the firm of retaliation after he filed a complaint with the Equal Employment Opportunity Commission (EEOC). A judge last week also denied a motion by The Pursuant Group asking that he set aside a jury’s award of $195,000 in punitive damages, back pay and pain and suffering.

The attorney for Philip Capps, Justin Jeter of Mathis, Donheiser & Jeter, plans to file a motion for attorneys’ fees by Aug. 15, to which a response is due by Aug. 29. It’s unclear whether Pursuant plans to appeal. Pursuant’s attorney, Stephen Key of Key Harrington Barnes, could not be reached for comment this week.

Seated in the Northern District of Texas, Dallas Division, U.S. District Court Judge Reed O’Connor found “a causal link” between Pursuant’s retaliatory ill will and the suspension and termination of Phillip Capps in May 2012, barely a month after he filed a complaint.

In April 2012, Capps had reported an October 2011 incident to Chief Executive Officer Trent Ricker, and later to Chief Operating Officer Ross Miller, board chairman Jon Halbert and Jon Williams, senior vice president in charge of human resources. Punitive damages are available where the plaintiff has “shown malice or reckless indifference to the federally protected rights of the plaintiff,” which the judge said “the record is replete with evidence.”

Halbert, the board chairman, admitted that instead of reading a report of retaliation sent to him by Capps, he forwarded it to Ricker – one of the people Capps identified as retaliating against him. In text messages discussing Capps’ reports of retaliation and sexual harassment, Miller and Ricker discussed “throwing Capps down an ‘elevator shaft,’ referred to him as a “’loser,’” and discussed ways they could legally justify firing him in light of a filing of an EEOC charge.” According to court documents, Ricker sent an email to Miller “recommending that Pursuant put Capps on a ‘path to termination,’” hours after Capps had reported the retaliation and sexual harassment. They discussed, via text message and email, possible alternatives that would legally justify firing Capps, including a way to get around the possibility that Capps had filed the EEOC charge.

Capps joined IBM in October 2012, testifying that he incurred $2,800 in expenses for the four months he spent looking for a job. His new position with IBM was considered a demotion because he was a sales rep and not managing a sales force like he did at Pursuant. He testified that he tried to stay in the nonprofit industry but could not find a job because of the damage to his reputation, “accused of falsifying numbers and labeled an extortionist” in connection with the lawsuit. Compensatory and punitive damages are capped at $100,000 for employers with 100 to 201 employees; Pursuant has about 140 employees.

Capps sought front pay covering 22 months – how long it would take him to earn the same pay in his new position that he would have made with Pursuant had he not been terminated. At Pursuant, his base pay was $150,000, with potential commissions of up to another $100,000. At IBM, Capps’ base is $142,407, in addition to potential commissions of $118,093, for a total $261,310. While the pay structure was similar at IBM, Capps testified that it would take 18 to 24 months to close on a transaction where he would receive commissions that would bring his salary to what he was earning at Pursuant. The judge ultimately awarded him $131,255 in front pay.

Capps had moved from Minnesota to Texas in March 2011 to become senior vice president of sales at Pursuant. At the time, Ricker had been “a leading defender of Capps,” according to testimony. That October, he and other colleagues were at an industry conference where Pursuant employees exchanged cell phones and one sent “inappropriate” text messages while later continuing to make hand gestures simulating masturbation to Capps and others. The firm’s attitude changed in April 2012, after Capps filed his complaint with the EEOC, according to court documents.