Dashnaw v. Pena, s. 92-5256

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation12 F.3d 1112
Docket Number92-5274,Nos. 92-5256,s. 92-5256
Parties67 Fair Empl.Prac.Cas. (BNA) 3, 63 Empl. Prac. Dec. P 42,769, 304 U.S.App.D.C. 247 Francis J. DASHNAW, Appellee-Cross-Appellant, v. Federico PENA, Secretary of Transportation, Appellant-Cross-Appellee.
Decision Date07 January 1994

Page 1112

12 F.3d 1112
67 Fair Empl.Prac.Cas. (BNA) 3, 63 Empl. Prac.
Dec. P 42,769,
304 U.S.App.D.C. 247
Francis J. DASHNAW, Appellee-Cross-Appellant,
Federico PENA, Secretary of Transportation, Appellant-Cross-Appellee.
Nos. 92-5256, 92-5274.
United States Court of Appeals,
District of Columbia Circuit.
Argued Nov. 24, 1993.
Decided Jan. 7, 1994.
Rehearing and Suggestion for Rehearing In Banc *
Denied in No. 92-5274 March 29, 1994.

Page 1113

On Appeal from the United States District Court for the District of Columbia (No. 77-CV-01342).

Charles F. Flynn, Asst. U.S. Atty., argued the cause, for appellant-cross-appellee. With him on the briefs were Eric H. Holder, Jr., U.S. Atty., John D. Bates and R. Craig Lawrence, Asst. U.S. Attys.

Joel P. Bennett argued the cause and filed the brief, for appellee-cross-appellant.

Before: EDWARDS and SILBERMAN, Circuit Judges, and RESTANI, * Judge, United States Court of International Trade.

Opinion for the Court filed PER CURIAM.


This case involves a complaint of age discrimination that was filed in the District Court in 1977. A trial was conducted on the complaint in 1980; subsequently, in 1982, before a judgment had been issued on the complaint, the plaintiff-appellee, Francis J. Dashnaw, retired from his employment with the appellant, the Department of Transportation ("Department"). In 1986, Dashnaw belatedly claimed that his retirement had resulted from a "constructive discharge" due to unlawful age discrimination; however, the complaint was never amended to include this charge and no trial was ever held on the issue. Finally, in 1992, 15 years after the filing of the complaint and 12 years after trial, the trial court issued a final judgment. This judgment not only resolved the original claim of age discrimination, but also the belated claim of constructive discharge.

In this appeal, the Department challenges a portion of the decision of the District Court. Appellant does not contest the District Court's finding that Dashnaw was the victim of age discrimination, but argues that the court erred in finding that Dashnaw was constructively discharged when he left his position in 1982 as a result of a reduction in force at the Federal Maritime Administration ("MARAD"), a division of the Department of Transportation. We reverse the trial court's constructive discharge finding on the ground that there was insufficient evidence to support it. This circuit's precedents make clear that, in order to find constructive discharge, a court must find not merely that a plaintiff employee was subject to intentional discrimination, but also that there were aggravating factors that drove him or her to quit. Because the District Court made no such findings, and because we find the record inadequate to support a claim of constructive discharge, it was error for the trial court to award relief to Dashnaw based on such a claim.

In addition, Dashnaw cross-appeals two aspects of the decision below. First, he contends that the District Court should have retroactively promoted him to the GS-16 level, rather than merely to GS-15. Second, he urges that the trial court should have awarded him additional compensation to help cover the higher taxes he will have to pay because he will receive his backpay in a lump sum. 1

Page 1114

We hold that both of these arguments are without merit.


Dashnaw was hired by MARAD in 1967 as an engineer at GS-14. In 1977, Dashnaw filed a complaint in District Court alleging employment discrimination on the basis of age, national origin, religion and race. By the time of trial, Dashnaw alleged only that he had been discriminated against on the basis of his age, in violation of the Age Discrimination in Employment Act's ("ADEA") provisions for federal employees, 29 U.S.C. Sec. 633a (1988), chiefly on the ground that he had been denied promotions that went instead to younger candidates.

The District Court conducted a bench trial from April 21 through May 1, 1980. In July 1982, before any judgment had issued in his case, Dashnaw filed a document with the court entitled "Notice of Change in Plaintiff's Employment Status," which read as follows:

Plaintiff hereby notifies the Court that the position held by the plaintiff at the Maritime Administration was abolished in April, 1982, under reduction in force (RIF) procedure. Plaintiff declined another job offer, resigned and has applied for discontinued service retirement. He is currently unemployed. Since this matter was tried in April, 1980, and has been pending decision since June of 1980, plaintiff respectfully requests that the Court expedite decision in this matter and render a decision within the next thirty (30) days.

Joint Appendix ("J.A.") 139. In the following three years, appellee filed four additional requests for expedited consideration and two motions for status calls. Brief for Appellant at 3. These motions did not allege that he had been constructively discharged nor did they mention the circumstances of his retirement.

In July 1985, the trial court ordered that Dashnaw...

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    • United States
    • United States District Courts. United States District Court (Columbia)
    • December 9, 2008
    ...a plaintiff must prove that "aggravating factors", beyond just discrimination forced him to leave his employment. Dashnaw v. Pena, 12 F.3d 1112, 1115 (D.C.Cir.1994). Thus, the District of Columbia Circuit recently reiterated "that a plaintiff bringing an employment discrimination claim unde......
  • Barber v. Cal. State Pers. Bd., E068719
    • United States
    • California Court of Appeals
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    ...in affirming a tax-component award in the Title VII context."].)The Clemens court acknowledged that in Dashnaw v. Pena (D.C. Cir. 1994) 12 F.3d 1112, the D.C. Circuit rejected an award for increased tax liability. The Dashnaw court explained: "Dashnaw also argues that the District Court sho......
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    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 27, 2019
    ...a plaintiff must prove that "aggravating factors," beyond just discrimination, forced her to leave her employment. Dashnaw v. Pena, 12 F.3d 1112, 1115 (D.C. Cir. 1994). Here, the plaintiffs have pleaded sufficient facts that support that Jane Does 1 and 2 were constructively discharged in r......
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    • United States
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    • January 30, 2009
    ...rejected the argument that a court could issue an award to compensate an employee for additional tax liability in Dashnaw v. Pena, 12 F.3d 1112 (D.C.Cir.1994) (per curiam), superseded in part by 29 U.S.C. § 633a(d). The entirety of the discussion of this issue in the court's per curiam opin......
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