Lander v. Lujan

• Decision Date: 27 October 1989
• Docket Number: No. 89-5014,89-5014
• Citation: 888 F.2d 153
• Parties: 51 Fair Empl.Prac.Cas. 157, 51 Empl. Prac. Dec. P 39,444, 281 U.S.App.D.C. 140, 58 USLW 2266 Walter J. LANDER v. Manuel LUJAN, Secretary, U.S. Department of the Interior, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 153

888 F.2d 153

51 Fair Empl.Prac.Cas. 157,

51 Empl. Prac. Dec. P 39,444, 281 U.S.App.D.C. 140,

58 USLW 2266

Walter J. LANDER v. Manuel LUJAN, Secretary, U.S. Department of the Interior, Appellant.

No. 89-5014.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 21, 1989.

Decided Oct. 27, 1989.

Michael J. Ryan, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief for appellant. George P. Williams, Washington, D.C., also entered an appearance for appellant.

Joseph B. Scott, Washington, D.C., for appellee.

Before RUTH BADER GINSBURG, SILBERMAN and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge SILBERMAN.

Concurring statement filed by Circuit Judge RUTH BADER GINSBURG.

SILBERMAN, Circuit Judge:

Appellee Walter Lander, a long time employee of the Bureau of Mines ("BOM"), Department of Interior, had occupied that Bureau's top administrative job, Assistant Director--Administration ("ADA"), since joining the Department in 1967. The ADA position was classified at a GS-15 pay scale and reported only to the Director of the Bureau. In 1978 the Bureau proposed to upgrade appellee's position to GS-16 and to include it within the Senior Executive Service ("SES"). In December 1978 and March 1979, Lander circulated memos that criticized the Department of Interior's affirmative action plan. Lander, who is white, asserted that the plan unlawfully discriminated against white males. In July 1979 the Bureau altered its reorganization plans and created a new SES position called Management Services Officer ("MSO"), which became the Bureau's top administrative position. Lander was not selected for this position; instead, he was named Chief of the Division of Administration ("CDA"), a job subordinate to the MSO.

Appellee filed suit on December 3, 1985 asserting that the Department had retaliated against him for his expression of views, in violation of section 704(a) of Title VII of the Civil Rights Act, 42 U.S.C. Sec. 2000e-3(a) (1982). Section 704(a) prohibits discrimination against an employee "because he has opposed any practice made an unlawful employment practice by [Title VII]." Id. The district court concluded that the Department had discriminated against appellee because of his affirmative action plan memos. The court specifically found that the MSO position was the successor to the ADA job and that appellee was entitled to the new position. To remedy the retaliatory demotion, the court ordered, inter alia, that appellee be given "the appropriate administrative position within the BOM at the appropriate advanced SES grade." Memorandum Opinion at 21 (February 6, 1987). The government at first filed a notice of appeal but later dropped it and therefore is not now appealing from the liability finding.

The Department responded to Judge Penn's order by creating another SES position for appellee--Associate Assistant Director ("AAD")--which was still subordinate to the top administrative position, now called Assistant Director--Finance and Management ("AD-FM"). Mr. Lander then moved to enforce the district court's judgment, arguing that the AAD was a thinly disguised resurrection of the old, discredited CDA position. Appellee claimed that he was entitled to "reinstatement" into the top administrative position at BOM, the AD-FM, even if that remedy required the displacement or "bumping" of the innocent incumbent. ¹

The district court agreed. The court found that, but for the retaliatory demotion, appellee would now occupy the AD-FM position and that the AAD position offered to appellee was not the equivalent of the ADA, the MSO, or the AD-FM. "Reluctantly" and only after carefully "balancing the equities," the court concluded that "absent 'bumping' the plaintiff's relief would be unjustly inadequate." Memorandum Opinion at 8 (November 7, 1988). The court then directed the Department to place appellee in the top administrative position at BOM.

The government appeals the district court's November 1988 bumping remedy, asserting, as best we understand its argument, that a court may order bumping, if at all, only as "a last resort," and consequently the district court's order should be reversed. The government contends that the court erroneously balanced the equities as a matter of law because it did not properly weigh the "disruption" of the work place and the impact on an "innocent incumbent." In the alternative, the government argues that the district court's finding that the AD-FM position was the successor to the original ADA job was clearly erroneous, and that even if we approve of bumping, the remedy cannot serve as a judicially required promotion for appellee.

This appeal presents us with an issue of first impression for this Circuit--whether and under what circumstances a district court may order bumping as a remedy for Title VII violations. Reinstatement to a job from which a plaintiff was discriminatorily denied need not require the displacement of an incumbent. The necessity for the bumping remedy only arises with unique, typically higher-level, jobs that have no reasonable substitutes. In those situations, the painful choice between the reliance interest of the innocent incumbent and the claims of a victim of discrimination has elicited conflicting responses from the courts of appeals that have visited this problem. Compare Brewer v. Muscle Shoals Bd. of Educ., 790 F.2d 1515 (11th Cir.1986) (authorizing bumping to remedy Title VII violations), with Spagnuolo v. Whirlpool Corp., 717 F.2d 114 (4th Cir.1983) (holding that the district court abused its authority in requiring bumping). One thread common to a number of circuit court decisions upholding bumping is the emphasis on "recalcitrance" or other bad faith behavior on the employer's part. See, e.g., Walters v. City of Atlanta, 803 F.2d 1135, 1149 (11th Cir.1986) ("A defendant's recalcitrance, as evidenced by repeated discriminatory actions after it is on notice of past illegal discrimination against a plaintiff, militates in favor of granting this extraordinary relief."); Brewer v. Muscle Shoals Bd. of Educ., 790 F.2d 1515 (11th Cir.1986) (approving of bumping remedy after school board violated a settlement agreement); Lee v. Macon County Bd. of Educ., 453 F.2d 1104 (5th Cir.1971) (authorizing bumping since school board hired incumbent after it had knowledge of the victim's claims).

As in any other remedy, a district court's chosen method of redressing a Title VII violation is reviewable under the abuse of discretion standard. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 424-25, 95 S.Ct. 2362, 2374-75, 45 L.Ed.2d 280 (1975). In light of the considerable discretion which this standard accords to the district courts (and bearing in mind that the impact of bumping on the innocent incumbent is relatively mild on the facts of this case) we see no reason to reverse the district court's choice of remedy, even absent a finding of employer recalcitrance. Moreover, the district court's decision to require bumping in this case accords with the broad guidelines that the Supreme Court has provided on the proper scope of Title VII remedies. District courts must strive to grant "the most complete relief possible" in cases of Title VII violations. Franks v. Bowman Transp. Co., 424 U.S. 747, 764, 96 S.Ct. 1251, 1264, 47 L.Ed.2d 444 (1976). In particular, the courts must make the victim "whole" by " 'plac[ing him], as near as may be, in the situation he would have occupied if the wrong had not been committed.' " Albemarle Paper Co. v. Moody, 422 U.S. at 418-19, 95 S.Ct. at 2372 (quoting Wicker v. Hoppock, 73 U.S. (6 Wall.) 94, 99, 18 L.Ed. 752 (1867)).

Title VII envisioned that making a victim whole would include his reinstatement to the position he would have held but for the discrimination. Section 706(g), 42 U.S.C. Sec. 2000e-5(g), the remedial provision of Title VII, specifically includes reinstatement as an appropriate judicial remedy. ² On the face of the remedial provisions of the statute, there is no evidence that Congress intended to exclude bumping from the district court's arsenal of available alternatives. Examination of precedent under the counterpart sections of the National Labor Relations Act ("NLRA"), 29 U.S.C. Sec. 160(c) (1982), on which section 706(g) was "expressly modeled," see Albemarle Paper Co. v. Moody, 422 U.S. at 419 & n. 11, 95 S.Ct. at 2372 & n. 11, reveals a legislative intent to include bumping in the district court's remedial arsenal. Under the NLRA, bumping constitutes a clearly authorized and even commonplace remedy. See, e.g., Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 278, 76 S.Ct. 349, 355-56, 100 L.Ed. 309 (1956) (upholding the reinstatement of striking workers even when the company had hired replacements); Oil, Chemical and Atomic Workers Int'l Union v. NLRB, 547 F.2d 575, 588 & n. 14 (D.C.Cir.) (approving NLRB orders to reinstate an illegally discharged employee to his former position or to a substantially equivalent position), cert. denied sub nom. Angle v. NLRB, 431 U.S. 966, 97 S.Ct. 2923, 53 L.Ed.2d 1062 (1977). In light of the ready availability of bumping in NLRA cases, we are persuaded that Congress understood and approved of the remedy in Title VII cases where circumstances made it appropriate. See Lorance v. AT & T Technologies, Inc., --- U.S. ----, 109 S.Ct. 2261, 2267, 104 L.Ed.2d 961 (1989) (observing that NLRA cases are often persuasive in construing Title VII cases). We note also that the Equal Employment Opportunity Commission ("EEOC") views bumping as an appropriate remedy for illegal discrimination. ³ See Equal Employment Opportunity Comm'n Revisions to Regulations, 52 Fed.Reg. 41,920, 41,929 (1987). ⁴ Furthermore, within the civil service system, where displaced incumbents presumably are assured reassignment, bumping is the presumptive remedy for unlawful...