Clark v. Marsh
| Decision Date | 02 September 1981 |
| Docket Number | No. 80-1680,80-1680 |
| Citation | 214 U.S. App. D.C. 350,665 F.2d 1168 |
| Parties | 26 Fair Empl.Prac.Cas. 1156, 26 Empl. Prac. Dec. P 32,082, 214 U.S.App.D.C. 350 Freda C. CLARK v. John O. MARSH, Jr., Secretary of the Army, Appellant, Robert L. Nelson, Assistant Secretary of the Army (Manpower and Reserve Affairs), Department of the Army, et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 77-1001).
Marleigh D. Dover, Atty., U. S. Dept. of Justice, with whom Alice Daniel, Asst. Atty. Gen., Charles F. C. Ruff, U. S. Atty., and Robert E. Kopp, Atty., U. S. Dept. of Justice, Washington, D. C., were on the brief, for appellant.
Before TAMM, Circuit Judge, HOMER THORNBERRY, * Senior Circuit Judge for the Fifth Circuit, and WILKEY, Circuit Judge.
Opinion for the court filed by Circuit Judge TAMM.
In this appeal the Secretary of the Army challenges certain aspects of an award made by the United States District Court for the District of Columbia to a Title VII plaintiff. After reviewing that challenge, we conclude that the district court's decision to award plaintiff relief for the period subsequent to her retirement was not erroneous. That decision is therefore affirmed. We find, however, that in certain other respects appellant's challenge has merit. We therefore remand this case to the district court for modification of its award in accordance with this opinion.
Freda C. Clark began her career with the Army in 1950 as a clerk-typist. She subsequently advanced to the position of principal assistant to the Director of the Office of Employment Policy and Grievance Review (OEPGR), attaining a GS-13 level in 1962. Thereafter, Clark elected to channel her advancement opportunities through the Army's recently instituted Career Program for Civil Personnel Administration (Career Program), a merit placement and promotions program for professionals in the 200 series. From 1972 to July 1977, Clark actively pursued various promotions and lateral transfers through the Career Program. During that period, however, she received only one permanent promotion: selection by her immediate supervisor as an Employee Relations Specialist, a GS-14 level position in which she acted as Deputy Director of OEPGR.
In December 1976, following the death of then-Director James Bage, Clark became Acting Director of the OEPGR. While in that capacity she received a temporary promotion to the GS-15 level, and performance ratings of "outstanding" and "satisfactory" at the GS-14 and GS-15 levels, respectively. She did not receive a permanent promotion to the Director's position, however, despite her performance ratings and her substantial supervisory experience. That appointment went instead to Holly Hemphill, an employee of the Federal Labor Relations Council and a recent law school graduate with no supervisory experience. Four days after Hemphill's appointment was announced, Clark retired.
In June of 1977, Clark brought this Title VII action, alleging that defendants had unlawfully deprived her of opportunities for certain training, promotions, and lateral developmental transfers on the basis of her sex and her activities in the OEPGR. 1 After On the basis of these findings, the court ordered that defendant offer plaintiff a promotion to a GS-14 level position effective as of November 20, 1972, and a promotion to the position of Administrator, GS-201-15 (or a position of comparable status, seniority, and pay), retroactive to September 29, 1974. If plaintiff declined these offers, she was to receive the difference between the amount she had already received and that which she would have received had she accepted those offers. The relevant payment period was to extend up to and including the date the offers were actually made. Finally, defendant was instructed to pay plaintiff the amount she would have received from the date of her retirement to the date of defendant's compliance with the court's order, reduced by the amount of annuity payments plaintiff had already received. Id. at 1248.
trial of this action, the district court issued a detailed statement of its findings of fact and conclusions of law. Clark v. Alexander, 489 F.Supp. 1236 (D.D.C.1980). In its statement the court concluded that plaintiff had been subjected to disparate treatment and disadvantaged by employment practices having disparate impact. 2 It found that the Career Program was plagued by "pervasive systemic defects" directly affecting plaintiff and other OEPGR staff members participating in the program. 3 Id. at 1246. The court also found that the dearth of referrals plaintiff received after 1972, plaintiff's outstanding employment record, and the existence of three positions for which plaintiff had been qualified but not selected, when considered in light of the systemic deficiencies noted above, indicated clearly that plaintiff had been subjected to disparate treatment. Id. at 1247. For these reasons, the court concluded that plaintiff had fully satisfied her statutory burden of proof
On appeal the Secretary alleges no error in the district court's findings of discrimination. Appellant does, however, challenge the relief awarded plaintiff in three respects. He first contends that the court failed to provide properly for a set-off of plaintiff's actual or potential interim earnings. He then argues that the court erroneously awarded backpay and retirement annuities for the same time period. Finally, appellant claims that because the court did not find that Clark was constructively discharged, she is not entitled to the job offer and backpay ordered for the period subsequent to the date of her retirement.
The merits of appellant's first two contentions are readily apparent. As appellee concedes, the statute which permits the district court to award plaintiff affirmative relief provides, at the same time, that "backpay otherwise allowable" shall be reduced by "(i)nterim earnings or amounts earnable with reasonable diligence by the person ... discriminated against ...." 42 Appellant's third contention requires more extensive consideration. Appellant argues that Clark was not entitled to relief for the period subsequent to her retirement unless she proved that she was constructively discharged from her employment. It notes that plaintiff alleged no cause of action for constructive discharge, that the parties presented conflicting evidence on the issue, and that the district judge made no explicit finding that plaintiff's retirement was involuntary. Absent such a finding, appellant contends, the court's award of relief for that period was erroneous.
U.S.C. § 2000e-5(g) (1976). The district court was therefore obligated to provide in his award for an appropriate set-off. Similarly, appellee acknowledges that Title VII does not authorize the "double recovery" afforded plaintiff by the district court's award of retroactive retirement annuity payments and backpay for the same time period. As appellant points out, the statute does not contemplate placing plaintiff in a better position than she would have been in absent discrimination. For these reasons we remand this case to the district court so that it may reduce its backpay award by the amount of interim earnings it shall determine, and eliminate from its award the retirement annuity payment for that period for which backpay has been contemporaneously ordered.
We readily agree that plaintiff's recovery for the period subsequent to her retirement must rest upon proof that she "was the responsible agent in (her) own termination." Williams v. Boorstin, 663 F.2d 109, at 119 (D.C.Cir.1980); 23 Fair Empl. Prac. Cas. 1669, 1676 (BNA). We do not so easily concede, however, the merits of appellant's argument regarding the consequences of the district court's failure to make an explicit finding of constructive discharge. Instead, we believe that argument must be properly tested by a two-step inquiry. In that inquiry, we must first decide whether the district court's failure precludes review or mandates reversal. If that failure does not itself require reversal, we must then determine whether the district court's other findings, when considered in conjunction with the record, adequately support the relief awarded.
With regard to the first step, we note that a district court is required by Rule 52(a) of the Federal Rules of Civil Procedure to make findings of fact and conclusions of law "in all actions tried upon the facts without a jury...." Fed.R.Civ.P. 52(a). This requirement is explained, in part, by the fact that compliance therewith aids appellate review, affording appellate courts "a clear understanding of the ground or basis" of the district court's decision. 9 C. Wright & A. Miller, Federal Practice And Procedure § 2571 at 679 (1971). For this reason, failure to comply with the rule's requirements may lead the reviewing court to vacate the district court's judgment and remand for appropriate findings. The reviewing court is not required, however, to take such action; lack of compliance with Rule 52(a) does not eliminate the jurisdictional basis for appellate review. Davis v. United States, 422 F.2d 1139, 1142 (5th Cir. 1970). Instead, an appellate court may elect to review the trial court's decision if "a complete understanding of the issues may be had without the aid of separate findings." Swanson v. Levy, 509 F.2d 859, 861 (9th Cir. 1975). We believe that in this case a "complete understanding" of the constructive discharge issue is afforded by the record and by the district court's other, detailed findings. We therefore conclude that the district court's failure to find constructive discharge does not itself require either reversal or remand. 4
Appellant's failure to obtain relief at this first step does not, of...
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