Jurgens v. E.E.O.C.

• Decision Date: 19 June 1990
• Docket Number: No. 89-1386,89-1386
• Citation: 903 F.2d 386
• Parties: 53 Fair Empl.Prac.Cas. 234, 54 Empl. Prac. Dec. P 40,039, 59 USLW 2055 Dale H. JURGENS, et al., Plaintiffs, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Defendant-Appellee, v. Jules H. GORDON, Plaintiff-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 386

903 F.2d 386

53 Fair Empl.Prac.Cas. 234,

54 Empl. Prac. Dec. P 40,039, 59 USLW 2055

Dale H. JURGENS, et al., Plaintiffs, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Defendant-Appellee, v. Jules H. GORDON, Plaintiff-Appellant.

No. 89-1386.

United States Court of Appeals Fifth Circuit.

June 19, 1990.

Jules H. Gordon, Oakland, Cal., pro se.

Jeffrey Clair, Dept. of Justice, Civ. Div., Washington, D.C., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before KING, GARWOOD, and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

This appeal arises from an employment discrimination action filed by a class of white male employees of the Equal Employment Opportunity Commission (EEOC) in 1976. In 1982, the district court ruled in favor of the plaintiff class, finding that, beginning in 1974, the EEOC had engaged in a pattern of discrimination in violation of title VII of the Civil Rights Act of 1964 in making certain personnel decisions. See Jurgens v. Thomas, 29 Fair Empl. Prac. Cas. (BNA) 1561, 1982 WL 409 (N.D.Tex.1982). The court subsequently appointed special masters to conduct hearings and make recommendations with respect to individual class members' claims for relief. In so doing, the court clarified,

Awards of back pay, as appropriate to eligible claimants who have left EEOC, shall run at least through the date of termination of employment. To obtain back pay or other relief for any period of time following his termination or resignation, a claimant must establish a 'nexus' between his termination or resignation and the discriminatory non-selection at issue.

Jules H. Gordon, a member of the plaintiff class, pursuant to methods specified by the district court, brought his case before a special master in order to gain relief.

I.

In November 1975, the EEOC promoted an Hispanic male, instead of Gordon, from the position of Assistant Regional Attorney (ARA) at the EEOC's San Francisco Regional Litigation Center to the position of Regional Attorney (RA). Gordon, who was then forty-nine years old, expected to continue to work for the EEOC in such a managerial role until the normal retirement age of sixty years, when he would be eligible for a "full" annuity.

As an ARA in October 1978, Gordon was a grade GS-15 employee with an annual salary of $45,792 and set the legal policies and trial strategies for the cases handled by approximately seven to twelve attorneys. At this time, the EEOC began reorganizing its field offices and reducing its forces. The EEOC abolished the position of ARA but retained that of RA, though reduced in grade from a GS-16 to a GS-15 and assigned managerial responsibilities substantially equivalent to those of the former ARA.

As a part of this reorganization, the EEOC offered Gordon the choice of accepting (i) a demotion to the position of Supervisory Trial Attorney (STA), a non-management GS-14 position with supervision over only three to five attorneys, or (ii) an early retirement with a reduced annuity of approximately $15,000 per year. The EEOC did not offer Gordon any of the new management positions that were created in other field offices. Perceiving no other acceptable options at that time, Gordon felt compelled to accept the EEOC's latter option, effective January 27, 1979, and to develop a practice as a private labor arbitrator. Gordon felt that it would be degrading to accept the demotion to the position of STA and that, in light of the apparent pattern of EEOC's discrimination against white males, there was no chance of his being promoted to a GS-15 managerial position.

Following an evidentiary hearing, the special master ultimately made the following recommendations, which the district court accepted with only a few slight modifications: (1) finding that the EEOC had discriminated against Gordon in denying him the 1975 promotion to RA; (2) awarding back pay from the time of the denial of the promotion until the effective date of his retirement; and (3) granting partial summary judgment against Gordon by refusing to award any back pay to compensate him for lost wages beyond the effective date of his retirement. The EEOC does not dispute the first two recommendations, but Gordon appeals the third. ¹

II.

A.

In reviewing a summary judgment, we apply the same standard as the district court, Waltman v. International Paper Co., 875 F.2d 468, 474 (5th Cir.1989), and ask whether the pleadings, depositions, and answers to interrogatories, together with the affidavits, demonstrate that no genuine issue of material fact remains and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). In making that determination, we must "review the facts drawing all inferences most favorable to the party opposing the motion." Reid v. State Farm Mut. Auto Ins. Co., 784 F.2d 577, 578 (5th Cir.1986). Accordingly, we view the evidence most favorably to Gordon. The EEOC, however, does not challenge the essential facts as alleged by Gordon but simply disputes the applicable law.

B.

Gordon challenges the special master's ruling that, where an employer's discriminatory denial of a promotion ultimately results in a demotion that precipitates the employee's retirement (even though that demotion occurred as part of an intervening nondiscriminatory reduction in force), the employee, in order to receive back pay compensation for any time after his retirement, must still show (i) that his retirement was the result of objectively intolerable working conditions constituting a constructive discharge and (ii) that there is a sufficient nexus or causal link between the denial and the employee's subsequent resignation--i.e., that at the time of the denial, the employer reasonably could have foreseen that the employee would face such intolerable conditions forcing him to resign. Although Gordon does not contend that the EEOC acted in a discriminatory fashion with respect to its 1978-79 reorganization, he argues that, "but for" the EEOC's discriminatory denial of his promotion to the GS-16 RA position in 1975, he would not have been compelled to retire in 1979 because, at worst, he would have been demoted to the new GS-15 RA position.

In support of his contention that the law does not require him to show constructive discharge, Gordon cites a number of cases from other jurisdictions that, according to Gordon, suggest that the relevant inquiry is whether Gordon properly mitigated his damages by accepting early retirement, not whether he was constructively discharged. ² However, it is well settled in this circuit that, in order for an employee to recover back pay for lost wages beyond the date of his retirement or resignation, the evidence must establish that the employer constructively discharged the employee. See Bourque v. Powell Elec. Mfg. Co., 617 F.2d 61, 65-66 & n. 8 (5th Cir.1980). ³

We find no inconsistency in determining entitlement to such back pay, in some cases, by whether the employee properly mitigated damages after his retirement or resignation, and in other cases, involving denial of promotion, by whether the employee was constructively discharged. We simply hold, as we did in Bourque, that where an employer discriminatorily denies promotion to an employee, that employee's duty to mitigate damages encompasses remaining on the job. ⁴ See Bourque, id. at 66 ("Certainly unlawful discrimination in the form of unequal pay is relevant in any determination of whether constructive discharge has occurred.... We think that unequal pay alone does not constitute such an aggravated situation that a reasonable employee would be forced to resign. Unequal pay is not a sufficient justification to relieve Ms. Bourque of her duty to mitigate damages by remaining on the job."). ⁵

C.

Thus, we now consider whether Gordon was constructively discharged. In Bourque, we enunciated the constructive discharge standard:

The general rule is that if the employer deliberately makes an employee's working conditions so intolerable that the employee is forced into an involuntary resignation, then the employer has encompassed a constructive discharge and is as liable for any illegal conduct involved therein as if it had formally discharged the aggrieved employee.

617 F.2d at 65 (quoting Young v. Southwestern Sav. & Loan Ass'n, 509 F.2d 140, 144 (5th Cir.1975)). We specifically endorsed a reasonable-employee test: "To find constructive discharge we believe that 'the trier of fact must be satisfied that the ... working conditions would have been so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign.' " Id. (quoting Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir.1977)).

Proof is not required that the employer imposed these intolerable working conditions with the specific intent to force the employee to resign. See id. at 65 & n. 5 (acknowledging that a number of other circuits have endorsed such a strict standard). Finally, we noted that our constructive discharge standard supports the purposes of title VII:

[Plaintiff] contends, however, that to require employees suffering illegal discrimination to seek legal redress while remaining in their jobs would contravene the policies served by title VII because then only 'foolhardy' victims would seek relief from discrimination. We disagree. Title VII itself accords legal protection to employees who oppose unlawful discrimination. Moreover, we believe that society and the policies underlying Title VII will be best served if, wherever possible, unlawful discrimination is attacked within the context of existing employment relationships.

Id. at 65-66 (citation and footnote omitted).

In cases subsequent to Bourque, we explicitly have placed the burden on the employee to prove constructive discharge. See Downey v. Southern...