Dashnaw v. Pena, s. 92-5256
| Decision Date | 07 January 1994 |
| Docket Number | 92-5274,Nos. 92-5256,s. 92-5256 |
| Citation | 12 F.3d 1112 |
| Parties | 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, v. Federico PENA, Secretary of Transportation, Appellant-Cross-Appellee. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
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 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 be promoted to GS-15 retroactive to an unspecified date, and receive backpay. The memorandum accompanying this order did not address plaintiff's 1982 retirement. Appellant moved to amend this judgment on the ground that the District Court's memorandum referred to documents that had not been admitted into evidence. The court granted appellant's motion in June 1986, vacating the July 1985 judgment.
On August 19, 1986, appellee filed a two-page motion again requesting expedited consideration of his case. This motion did not use the words "constructive discharge," but did state that: "Plaintiff submits that his retirement in the face of being offered a position with no description or duties was in effect involuntary and would not have occurred if he had not been discriminated against with respect to promotion in the 1970s." Plaintiff's Motion for Decision, reprinted in J.A. 140, 141.
On April 4, 1988, the District Court issued a memorandum finding that Dashnaw had been discriminated against on the basis of his age on four occasions in 1975-76 during which he was denied promotions. However, the trial court's findings made no reference to constructive discharge, and they did not include an order. The District Court invited Dashnaw to propose a remedial order, after which appellee recommended that he be reinstated with backpay as if he had not left MARAD in 1982. Both sides then filed multiple affidavits and exhibits concerning the circumstances surrounding Dashnaw's departure from MARAD. See J.A. 151-220.
The District Court issued a memorandum order on September 11, 1989, finding that Dashnaw was entitled to a retroactive promotion to the GS-15 level, effective two years prior to the date he filed his complaint. See Sept. 11, 1989 Order, reprinted in J.A. 55, 56. The memorandum proceeded to consider the constructive discharge claim, noting that it did not credit appellant's contentions that, when the plaintiff's job had been eliminated in 1982, Dashnaw had been offered an alternative job from which he was likely to attain the promotion to GS-15 which he had long sought. Id. at J.A. 59. The trial court found that Dashnaw was constructively discharged because "a reasonable person would have concluded that those working conditions were intolerable." Id. at J.A. 60.
On May 11, 1992, the District Court issued the order appealed from in this case. This order directed that plaintiff be reinstated as a GS-15 and receive backpay from 1975 through the date of the order, subject to appropriate mitigation as determined by the parties' subsequent discovery. Because the court found that Dashnaw was constructively discharged in 1982, its backpay award included the years after appellant left MARAD's employ.
The Department's chief argument is that Dashnaw's constructive discharge claim was not timely raised. The ADEA provides that a federal employee age discrimination plaintiff may not commence a civil suit concerning his claim until thirty days after he has given the Equal Employment Opportunity Commission ("EEOC") notice of his intent to sue:
When the individual has not filed a complaint concerning age discrimination with the Commission, no civil action may be commenced by any individual under this section until the individual has given the Commission not less than thirty days' notice of an intent to file such action. Such notice shall be filed within one hundred and eighty days after the alleged unlawful practice occurred. Upon...
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