IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

GEORGE W. MARTHERS, III, et al. : CIVIL ACTION

:

v. :

:

ALBERTO GONZALES : NO. 05-3778

MEMORANDUM OF DECISION

THOMAS J. RUETER June 26, 2008

Chief United States Magistrate Judge

Presently before the court is plaintiffs’ Motion for Restoration of Personal Leave,

with a memorandum of law in support of the motion (Doc. No. 60) (the “Motion”). Defendant

filed a memorandum in opposition to plaintiffs’ Motion (Doc. No. 68) (“Def.’s Mem. of Law”)

and plaintiffs filed a Reply Memorandum of Law in Support of Petition for Restoration of

Personal Leave (Doc. No. 71) (“Reply Br.”). For the reasons stated herein, plaintiffs’ Motion is

granted in part and denied in part.

I. BACKGROUND

Plaintiffs George W. Marthers, III and Jude T. McKenna, agents at the Drug

Enforcement Administration (“DEA”), filed the instant action, alleging that they were victims of

a racially hostile environment and of retaliation. The case was tried before a jury for seven days,

from December 6, 2007 through December 14, 2007. The jury returned a verdict in plaintiffs’

favor on each claim, awarding plaintiff Marthers $3,000,000 and plaintiff McKenna $4,000,000

in compensatory damages. See Jury Interrogatory Form (Doc. No. 54). Defendant filed a Motion

to Amend Judgment pursuant to Fed. R. Civ. P. 59(e) and 42 U.S.C. § 1981a(b)(3)(D) to reduce

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the compensatory damage award to each plaintiff to $300,000 (Doc. No. 58). On January 3,

2008, the court entered an order so amending the judgment (Doc. No. 65).

II. DISCUSSION

A. Restoration of Annual and Sick Leave

Beginning in March and April 2002, respectively, plaintiffs Marthers and

McKenna were absent from the office in connection with claims related to workplace stress. The

DEA recommended that each plaintiff undergo a Suitability Review Protocol (“SRP”) that was

utilized to determine whether plaintiffs were fit to return to work. (N.T. 12/7/07 at 94; N.T.

12/10/07 at 104, 169; Exs. 100, 101.) In January 2003, plaintiffs were notified of the results of

the SRP, and were given proposed termination letters on the basis that they were unfit for duty,

along with treatment agreements. (N.T. 12/7/07 at 95, 101-02; N.T. 12/10/07 at 113; Ex.110.) 

Plaintiffs were given the option of signing the treatment agreements or having their employment

terminated. (N.T. 12/7/07 at 102; N.T. 12/10/07 at 113; Exs. 110, 146.) Plaintiffs sought to

negotiate what they deemed to be the onerous terms of the treatment agreements. (N.T. 12/7/07

at 103, 147, 174-76; N.T. 12/10/07 at 113-14, 159-60; Exs. 112, 149.) Moreover, because of the

time lag since their examination by DEA doctors in September 2002, plaintiffs requested another

examination by the DEA. (N.T. 12/7/07 at 104-06; N.T. 12/10/07 at 114-15, 164-65.) At the

time they were given the proposed treatment agreements in January 2003, plaintiffs were

removed from administrative leave and were forced to use sick and/or annual leave, although

plaintiffs did not authorize the use of sick and/or annual leave. (N.T. 12/7/07 at 108-09; N.T.

12/10/07 at 115-17; N.T. 12/12/07 at 147.) Pursuant to DEA policy, plaintiffs were entitled to

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notice that their sick and/or annual leave was going to be used, but the DEA did not so notify

plaintiffs. (N.T. 12/12/07 at 148.) 

Plaintiffs presently ask the court, pursuant to 42 U.S.C. § 2000e-5(g), to restore

their annual and sick leave from January 27, 2003 until their return to work as Special Agents

with the DEA. (Mot. at 2-4.) Mr. Marthers requests that his leave be restored from January 27,

2003 to July 14, 2003 and Mr. McKenna requests that his leave be restored from January 27,

2003 to October 20, 2003. Id. at 4. 

Plaintiffs contend that the court may order back pay, reinstatement, and any other

equitable relief as the court deems appropriate. Id. at 2. Specifically, plaintiffs posit that where a

plaintiff’s illness is proximately caused by defendant’s retaliatory actions, the restoration of lost

sick and annual leave may be a proper exercise of the court’s broad discretionary power to grant

relief under Title VII. (Mot. at 2-3.)

However, lost fringe benefits, such as vacation pay, are components of an

equitable back pay award under Title VII. See Landgraf v. USI Film Products, 511 U.S. 244, 253

(1994) (noting that prior to the 1991 amendments to Title VII which permitted an award of

compensatory damages for acts of intentional discrimination, monetary relief for a

discriminatorily discharged employee generally included “only an amount equal to the wages the

employee would have earned from the date of discharge to the date of reinstatement, along with

lost fringe benefits such as vacation pay and pension benefits”); Woodyatt v. Bethlehem Steel

Corp., 1996 WL 334427, at *2 (E.D. Pa. June 10, 1996) (back pay award for Title VII claimant

was calculated by adding lost wages to lost fringe benefits). See also Suggs v. ServiceMaster

Educ. Food Mgmt., 72 F.3d 1228, 1233 (6th Cir. 1996) (a Title VII back pay award “should

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include the salary, including any raises, which plaintiff would have received but for the

discrimination, as well sick leave, vacation pay, pension benefits and other fringe benefits he

would have received but for the discrimination”); Pettway v. Am. Cast Iron Pipe Co., 494 F.2d

211, 263 (5th Cir. 1974) (finding under Title VII that “interest, overtime, shift differentials, and

fringe benefits such as vacation and sick pay are among the items which should be included in

back pay”); Dye v. Bellsouth Telecommunications, Inc., 462 F. Supp. 2d 845, 852 (W.D. Tenn.

Nov. 21, 2006) (a back pay award “should include the salary, including any raises, which

plaintiff would have received but for the discrimination, as well as sick leave, vacation pay,

pension benefits and other fringe benefits she would have received but for discrimination). 

Pursuant to the Third Circuit’s holding in Spencer v. Wal-Mart Stores, Inc., “a

successful hostile work environment claim alone, without a successful constructive discharge

claim, is insufficient to support a back pay award.” 469 F.3d 311, 317 (3d Cir. 2006). In

Spencer, the court reasoned that if a hostile work environment does not rise to the level where

one is forced to abandon the job, loss of pay is not an issue. Id. In the present case, plaintiffs did

not raise a constructive discharge claim, and accordingly, cannot support a claim for back pay,

i.e., a claim for restoration of their sick and annual leave. 

In any event, the court finds that the equitable considerations plaintiffs raise in

this case do not warrant an award of lost annual and sick leave. Plaintiffs contend that they

“justifiably refused” to sign the proposed treatment Agreements because the agreements were

stale and would have subjected them to removal with no procedural due process rights. (Mot. at

3.) Plaintiffs sought to negotiate what they deemed to be the onerous provisions of the treatment

agreements. However, the evidence adduced at trial does not establish that the terms of the

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1 Ms. Hager acknowledged that she was not aware of any other case in which an

employee had been the subject of enforced leave under circumstances where he did not consent

to the use of his leave. (N.T. 12/12/07 at 153.) 

5

treatment agreements presented to plaintiffs were any more onerous than that of the treatment

agreements presented to other DEA employees. 

Margaret Ann Hager, a supervisory human resource specialist with the DEA,

testified that in October 2002, the Department of Justice changed its policy with respect to

administrative leave, withdrawing DEA’s authority to grant administrative leave for periods of

time in excess of ten days. (N.T. 12/12/07 at 119.) For those individuals who were currently on

administrative leave at that time, the DEA was directed by the Department of Justice (“DOJ”) to

review all cases and to convert that administrative leave status to another alternative status. 

(N.T. 12/12/07 at 119.) The DOJ did not give the DEA the option of keeping employees on

administrative leave, but the policy change gave the DEA the ability to appeal to DOJ to keep

individuals on administrative leave. (N.T. 12/12/07 at 119-20.) At the time of the policy change,

the DEA had approximately thirty individuals, including plaintiffs, on administrative leave. 

(N.T. 12/12/07 at 120.) The DEA asked the DOJ to have certain individuals remain on

administrative leave, but that request was denied. (N.T. 12/12/07 at 120.) By February or March

2003, all individuals who had been on long-term administrative leave as of November 2002,

except Mr. Marthers and Mr. McKenna, had either (1) voluntarily entered into treatment

agreements and were using their accrued leave or were in leave without pay status, or (2) been

terminated from employment with the DEA. (N.T. 12/12/07 at 127.)1

Furthermore, the court is not persuaded by plaintiffs’ argument that the DEA’s

decision to enforce their personal leave, without their consent or authorization, was retaliatory

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because those involved in the process were aware that plaintiffs had filed EEOC complaints. See

Mot. at 3. Ms. Hager testified that she read plaintiffs’ medical documentation in November or

December 2002 which mentioned the existence of the EEOC complaints and thus was aware in

January 2003 that plaintiffs had filed EEOC complaints. (N.T. 12/12/07 at 130-31, 149-50, 153.) 

However, Ms. Hager also testified that when she read the medical documentation, she did not

focus on that issue. (N.T. 12/12/07 at 130-31, 149-50, 153.) Rather, Ms. Hager testified that the

first time she recalled recognizing that plaintiffs had filed EEOC complaints was during a

conversation that she had with a DEA attorney regarding the conversion of plaintiffs’ leave

status. (N.T. 12/12/07 at 130-31, 149-50.) Ms. Hager testified that her conversation with the

DEA attorney took place after Mr. McKenna had entered leave without pay status, which would

have been after January 2003. See N.T. 12/12/07 at 130-31, 149-50. Although the jury found

that defendant retaliated against plaintiffs, it is unclear from the jury’s verdict whether the DEA’s

decision to enforce their personal leave was a component of the retaliation finding. Based on the

evidence at trial, equitable considerations do not warrant an award of lost annual and sick leave.

For the foregoing reasons, plaintiffs’ claims for the restoration of their annual and

sick leave is denied.

B. Conversion of Mr. McKenna’s Leave Without Pay Status

In their Motion, plaintiffs also request that Mr. McKenna’s leave without pay

(“LWOP”) status be retroactively converted to administrative leave. (Mot. at 4.) Mr. McKenna

was on LWOP status for approximately nine or ten weeks, from some time in July 2003 until his

return to limited duty work in October 2003. (N.T. 12/7/07 at 110.)

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At trial, Mr. McKenna testified that while awaiting the results of his SRP, he

contacted Ms. Hager and requested that the DEA expedite the SRP process because he was about

to be converted to LWOP status, and also to request that his annual and sick leave be restored. 

(N.T. 12/7/07 at 110, 118, 128; Exs. 153, 157, 159, 161, 162, 163, 165.) As a result, Ms. Hager

contacted the DOJ attorney who handles administrative leave cases to determine whether there

was any relief available to convert Mr. McKenna’s upcoming LWOP status. (N.T. 12/12/07 at

129.) Ms. Hager testified that after initially receiving negative feedback from the DOJ attorney,

she was informed by another DOJ official, Joanne Simms, that she could submit a written request

to convert Mr. McKenna’s LWOP status to administrative leave, retroactive to when the LWOP

status first began. (N.T. 12/12/07 at 130-31, 134.) Ms. Hager testified that Ms. Simms

authorized her to convert Mr. McKenna’s LWOP to administrative leave, retroactive to leave

period fourteen until he returned to work in October 2003. (N.T. 12/12/07 at 130-31.) Ms.

Hager testified that to her knowledge, the conversion from LWOP to administrative leave was

completed. (N.T. 12/12/07 at 131.) According to Ms. Hager’s testimony, she directed the

timekeeper in the Philadelphia office to make the conversion, but did not follow up to determine

whether the conversion had been completed. (N.T. 12/12/07 at 153.) However, plaintiffs

maintain that Mr. McKenna’s LWOP status was never converted to administrative leave. (Mot.

at 4.)

As the foregoing testimony makes clear, the DOJ and DEA reached an agreement

to convert Mr. McKenna’s LWOP status to administrative leave for the relevant time period

during July to October 2003. The court finds that defendant should conduct an investigation into

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its records to determine whether the conversion was completed, and if it was not completed, take

any and all steps necessary to complete the conversion as promised.

Accordingly, plaintiffs’ motion is granted in part and denied in part. An

appropriate order follows. 

BY THE COURT: 

 /s/ TJR 

THOMAS J. RUETER

Chief United States Magistrate Judge 

 

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