Hudson v. Reno

Decision Date10 March 1998
Docket NumberNo. 96-5232,96-5232
Parties75 Fair Empl.Prac.Cas. (BNA) 1011, 72 Empl. Prac. Dec. P 45,097 Marilyn L. HUDSON, Plaintiff-Appellant, v. Janet RENO, Attorney General of the United States, and United States Department of Justice, Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

David H. Shapiro (argued and briefed), Swick & Shapiro, Washington, DC, Arthur J. Andrews (briefed), Andrews, Hudson & Wall, Knoxville, TN, for Plaintiff-Appellant.

Mark W. Pennak (argued and briefed), Michael Jay Singer (briefed), U.S. Department of Justice, Civil Division, Appellate Staff, Washington, DC, for Defendants-Appellees.

Before: KRUPANSKY and SUHRHEINRICH, Circuit Judges; ROSEN, District Judge. *

OPINION

ROSEN, District Judge.

Plaintiff-Appellant Marilyn L. Hudson appeals several rulings of the United States District Court for the Eastern District of Tennessee in her Title VII sex discrimination action. For the reasons stated herein, we affirm.

I. INTRODUCTION

Plaintiff-Appellant Marilyn Hudson, a former Assistant United States Attorney ("AUSA") brought this action in the District Court alleging that her superiors in the United States Attorney's office in the Eastern District of Tennessee (1) engaged in sex discrimination and retaliation against her in her employment in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. and the Equal Pay Act, 29 U.S.C. § 206(d), and (2) violated her rights under the Privacy Act, 5 U.S.C. § 552a. The Privacy Act, Equal Pay Act and pre-November 20, 1991 Title VII claims 1 were tried to the court, while a jury decided the post-November 20, 1991 Title VII claims.

The District Court found in favor of the Defendants on the Privacy Act, Equal Pay Act and pre-1991 Title VII claims. With respect to Hudson's post-November 20, 1991 claims, the jury found Defendants liable for sex discrimination, retaliation and constructive discharge and awarded Hudson $250,000 in compensatory damages for sex discrimination; $500,000 in compensatory damages for retaliation; and $750,000 in compensatory damages arising from the constructive discharge, for a total award of $1.5 million. The District Court, however, capped all of these damages at $300,000 pursuant to the damages caps in 42 U.S.C. § 1981a. The court also determined that reinstatement was not a viable option, but refused to award Plaintiff front pay, finding that Hudson had immediately gone into private practice after leaving the U.S. Attorney's office and that there was no financial detriment as a result of her change in employment. Thereafter, the court awarded Hudson $430,752.28 in attorney fees and costs.

Hudson now appeals the District Court's rulings with respect to the compensatory damages cap; the refusal to award her front pay; her Privacy Act claim; and the attorneys' fee award.

II. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Marilyn Hudson was hired as an AUSA on March 7, 1983 by John W. Gill, Jr., who was, at the time, the United States Attorney for the Eastern District of Tennessee. In 1986 and 1987, Gill rated Hudson's work "excellent", and in 1988, he rated her "outstanding." Gill subsequently promoted Hudson to the position of Chief of the Financial Litigation Unit in February 1989, and then, in November 1989, he promoted her to Chief of the Civil Division. During this same time period, Gill also promoted James R. Dedrick, who was hired as an AUSA the same time as Plaintiff, to First Assistant U.S. Attorney, the second-in-command position.

Between February 1989 and April 1990, Gill rated Hudson's supervisory performance as "outstanding". Thereafter, however, Gill became dissatisfied with Plaintiff's performance. Specifically, he identified several managerial and personnel problems, including: failing to complete personnel paperwork in a timely fashion, despite repeated requests; failing to complete her budgetary plan diligently; failing to comply with the Office's plan for purging old files, including falsely certifying that the Civil Division was in compliance; and shortcomings in her management of staff and distribution of work.

In January 1991, Gill recommended three of his male supervisors to the Executive Office for the United States Attorneys ("EOUSA") for salary increases. However, he declined to recommend Plaintiff, a female, and one other male AUSA because of their poor work performances. At this time, Gill and Dedrick also placed Plaintiff on a 90-day improvement plan designed to let her correct the deficiencies in her job performance. During this 90-day period, however, Ms. Hudson's performance did not improve.

In May 1991, Dedrick, with Gill's approval, gave Plaintiff a negative performance evaluation, rating her "minimally satisfactory" for the period April 1990 to April 1991.

On May 31, 1991, Hudson initiated an equal opportunity ("EEO") administrative complaint within the Department of Justice, charging that Dedrick and Gill had engaged in sex discrimination in violation of Title VII, and later, when she learned of Gill's refusal to raise her salary, she added an Equal Pay charge.

Unaware of Hudson's EEO complaint, on June 4, 1991, Gill and Dedrick demoted her to a line AUSA criminal position. However, this demotion did not affect Hudson's salary or regular interval pay increases. After Hudson's demotion, her former position as Civil Chief was abolished. A Criminal Chief position was subsequently created, and this position was given to Steve Clark, a male.

In the ensuing months, Hudson lied to Steve Clark about her leave status, and she was openly critical of Gill and Dedrick within the office and to outside attorneys, including advising one attorney that his client should try to resolve a case that the DOJ was prosecuting after Gill left his post, stating that the new U.S. Attorney would likely resolve it on terms more favorable to the defendant. She repeatedly referred to Gill and Dedrick in derogatory and obscene terms and implied that she was going to retaliate against them.

Gill ultimately requested that EOUSA investigate Hudson's misconduct and the general situation in the U.S. Attorney's office in Knoxville. The Executive Director of the EOUSA, Laurence McWhorter, sent EOUSA's Special Counsel, former U.S. Attorney John Volz, to investigate. Volz interviewed approximately 30 people about Hudson's alleged misconduct, and after finishing those interviews, Volz interviewed Hudson.

Eventually, Gill requested that the EOUSA terminate Hudson. On November 20, 1991, after receiving Gill's request, McWhorter wrote Hudson informing her that he intended to seek her termination based on the charges of misconduct made by Gill and Dedrick which Volz had investigated. McWhorter also informed Hudson that, prior to making a recommendation to the Deputy Attorney General, she would be given an opportunity to respond to the charges against her and her reply would be taken into consideration before further action was taken. Pending review of her conduct, Plaintiff was placed on non-duty status at full pay.

Shortly thereafter, Jerry Cunningham replaced John Gill as the U.S. Attorney for the Eastern District of Tennessee.

On December 11, 1991, Hudson filed an action in the district court alleging sex discrimination, retaliation and violations of the Privacy Act. In this action, Plaintiff sought, and was granted, a temporary restraining order ("TRO") enjoining DOJ from terminating her employment pending a preliminary injunction hearing. The District Court indefinitely continued the TRO. The Department of Justice successfully appealed the TRO decision to this Court, but 12 days before the District Court dissolved the TRO and ordered a preliminary injunction hearing without delay, Hudson resigned.

Although the EOUSA had referred the misconduct charges to the DOJ's Office of Professional Responsibility, the DOJ abandoned its efforts to terminate Hudson at the request of the new U.S. Attorney, Jerry Cunningham. Thus, in February 1992, Plaintiff returned to work.

Upon assuming office, Cunningham replaced Dedrick with Guy Blackwell as First Assistant. Prior to leaving, Dedrick showed Blackwell and Cunningham a file he had been keeping which contained his personal notes regarding Hudson's misconduct. This file, which was kept in a locked drawer, was separately categorized as the "First Assistant's" file and it was not retrievable under Hudson's name.

Although Cunningham initially supported Hudson, on June 25, 1992, he sent Hudson a memorandum detailing numerous instances of what he considered to be misconduct on her part during his tenure, including unauthorized removal of, and access to documents; lack of truthfulness to her superiors; failure to perform work and abuse of sick leave; and unprofessional and disruptive conduct. On October 27, 1992, Hudson filed another Complaint, again alleging additional Title VII sex discrimination and retaliation and Privacy Act claims, as well as an Equal Pay Act violation. 2

In April 1993, allegations of misconduct before the grand jury resulted in Plaintiff's being suspended from appearing before the grand jury. Although an investigation by the Office of Professional Responsibility ("OPR") soon cleared her of any wrongdoing, she was not allowed to resume her grand jury work.

Cunningham eventually left office in May 1993, and was replaced on an interim basis by David Dake. In August 1993, Hudson learned that when Carl Kirkpatrick became the new permanent U.S. Attorney, James Dedrick would be transferring back as First Assistant.

Effective September 4, 1993, Hudson resigned, and in October 1993, she amended her Complaint to include a sex discrimination and retaliatory constructive discharge claim. Immediately thereafter, she went into private practice with Ailor, Andrews & Hudson, a small firm that she founded with two...

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