Tadlock v. Powell
| Decision Date | 30 May 2002 |
| Docket Number | No. 01-2413.,No. 01-2551.,01-2413.,01-2551. |
| Citation | 291 F.3d 541 |
| Parties | Larry T. TADLOCK, Appellee/Cross-Appellant, v. Donald E. POWELL, Chairman, Federal Deposit Insurance Corporation, Appellant/Cross-Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Kathleen V. Gunning, argued, F.D.I.C., Appellate Litigation Section, Washington, DC (Colleen J. Boles, Acting Asst. Gen. Counsel, Robert D. McGillicuddy, Supervisory Counsel, Jeannette E. Roach and Kenneth Lewis, F.D.I.C., on the brief), for appellant.
Philip E. Kaplan, argued, Little Rock, AR (Regina Haralson, on the brief), for appellee.
Before McMILLIAN, HEANEY, and RILEY, Circuit Judges.
Donald E. Powell,1 Chairman of the Federal Deposit Insurance Corporation (FDIC), appeals from a bench trial verdict in favor of Larry Tadlock (Tadlock), an FDIC employee, on his age discrimination claim. The district court2 entered final judgment, awarding Tadlock back pay and reinstatement, but denying him prejudgment interest.
On appeal, the FDIC argues the district court clearly erred in finding age discrimination and constructive discharge. Tadlock cross appeals, contending the district court abused its discretion in ordering reinstatement, in finding it lacked jurisdiction to subpoena a party to trial, and in interpreting Rule 45 of the Federal Rules of Civil Procedure. We affirm.
Larry Tadlock was a career employee with the FDIC. In 1967 at the age of twenty-six, he began working for the FDIC in the Division of Supervision as an Assistant Bank Examiner Trainee. While working in the Division of Supervision, Tadlock received numerous promotions and was assigned to duty stations in Tennessee and Mississippi.
In 1986 the FDIC promoted Tadlock to a Grade 14 position of Field Office Supervisor (FOS) in Little Rock, Arkansas. The Little Rock Field Office supervises the bank examination process and oversees Arkansas banks in the Memphis region.3 As a FOS, Tadlock was a first-line supervisor of twenty-five bank examiners and support personnel.
In descending order, Tadlock had three line supervisors: Cottrell Webster (Webster), the Regional Director; Stephen Race (Race), the Deputy Regional Director; and Patricia Lenfert (Lenfert), the Assistant Regional Director. For nearly thirty years, Tadlock received favorable performance evaluations from his line supervisors and never received disciplinary action. In late 1996 and early 1997, Tadlock experienced problems with two bank examiners under his supervision. One of the bank examiners filed a grievance against Tadlock. Another employee supervised by Tadlock also filed a grievance against him. Nicholas Ketcha (Ketcha), Director of the Division of Supervision, forwarded the employee grievances against Tadlock to the FDIC's Office of Inspector General (OIG) in Washington, D.C. The OIG declined to investigate the grievances and remanded the matters to Ketcha for resolution.
On February 27, 1997, Webster notified Tadlock in writing that the FDIC was detailing him for six weeks to the Memphis Regional Office to work in the position of Acting Assistant Regional Director (AARD).4 According to Webster's memorandum, the six-week detail was to commence on March 31, 1997, and end on May 9, 1997. When Tadlock reported to the regional office on March 31, 1997, to begin his detail, Webster, Race, and Lenfert summoned him to a three-hour meeting in which they alleged Tadlock had exercised poor judgment, mistreated staff persons, misinterpreted promotion policy, failed to follow instructions, and played solitaire on an office computer. During the meeting Webster told Tadlock he had begun to question Tadlock's judgment commencing in December 1996. Tadlock's supervisors also discussed numerous decisions Tadlock made during his tenure at the Little Rock Field Office with which Webster, Race and Lenfert disagreed. Lenfert observed that "in her 20 years of employment she ha[d] not seen or heard of a more discontented field office as Little Rock." Afterwards, Lenfert wrote a memorandum memorializing the meeting. Following the meeting Tadlock received no discipline for his alleged misconduct.
When Tadlock's detail in Memphis was completed, Webster converted Tadlock's AARD position to Acting Case Manager (ACM). Webster told Tadlock he would have the ACM detail in Memphis for six additional weeks while the OIG completed its investigation of the allegations against him. Tadlock contested the extension of his detail in Memphis by filing a grievance and twice appealing its denial. After Tadlock completed his second detail, Webster met again with Tadlock and said he had not decided whether to return Tadlock to his FOS position in Little Rock. Webster told Tadlock he would make a decision within two weeks. Two weeks later, Webster told Tadlock he was waiting to hear from Washington before making a decision, although Webster knew the OIG had officially declined to investigate employee grievances filed against Tadlock. Weeks later, Tadlock inquired again, and Webster told him he hoped to know something by Labor Day. After Labor Day passed, Tadlock inquired again, and Webster responded that he had no information.
In September 1997, the FOSs met in Memphis. During the meeting, Webster declared the high percentage of higher-grade white males in the forty-five to fifty-five age group presented a problem to the FDIC with respect to attracting minority employees. Reference was made that the FDIC employees should reflect the "Face of America." On October 3, 1997, Tadlock filed an Equal Employment Opportunity (EEO) complaint alleging race and sex discrimination based on the indefinite extension of his detail in the Memphis Regional Office and harassment by management in retaliation for unsubstantiated complaints filed by coworkers.
By letter dated December 12, 1997, Webster informed Tadlock that he no longer held the FOS position in Little Rock. Instead, Webster's letter informed Tadlock that he was being permanently reassigned to the position of Case Manager (CM), Grade 14, in the Memphis Regional Office. Webster's letter offered Tadlock three choices: accept the directed reassignment, retire, or be involuntarily separated from service.
At the time Tadlock received the letter, he was fifty-six years old. Twice before, Tadlock had declined management requests to transfer voluntarily to the CM position. The directed reassignment to the CM position stripped Tadlock of his job title and supervisory responsibilities. On February 6, 1998, Tadlock filed a second EEO complaint alleging race and sex discrimination based on his involuntary reassignment and a low performance appraisal. In his second EEO complaint, Tadlock sought reinstatement to the FOS position in the Little Rock Field Office.
Because Tadlock believed his reassignment was a demotion and an attempt by management to force him to resign, he declined the reassignment and retired effective February 14, 1998. In April 1998 Webster selected a male under age forty to replace Tadlock as the FOS in the Little Rock Field Office. In May 1998 Tadlock filed a third EEO complaint alleging age discrimination on the basis of constructive discharge and requesting reinstatement to the FOS position in the Little Rock Field Office.
The case was tried to the bench. The district court found the FDIC had discriminated against Tadlock on the basis of age by demoting and constructively discharging him. However, the district court concluded Tadlock had not proved his retaliation claim. The court ordered the FDIC to reinstate Tadlock either to the FOS position or to a comparable position in the Little Rock Field Office. The district court also ordered back pay. The court did not award prejudgment interest, concluding the United States was immune from paying prejudgment interest.
In reviewing a district court's order entering judgment after a bench trial, we review the court's factual findings for clear error and its legal conclusions de novo. Fed.R.Civ.P. 52(a); Speer v. City of Wynne, Ark., 276 F.3d 980, 984-85 (8th Cir.2002). "Under this standard, we overturn a factual finding only if it is not supported by substantial evidence in the record, if the finding is based on an erroneous view of the law, or if we are left with the definite and firm conviction that an error has been made." Estate of Davis v. Delo, 115 F.3d 1388, 1393-94 (8th Cir. 1997). We give due regard to the opportunity of the district court to judge the credibility of the witnesses. Id.; Fed.R.Civ.P. 52(a).
A factual finding supported by substantial evidence on the record is not clearly erroneous. Akeyo v. O'Hanlon, 75 F.3d 370, 373 (8th Cir.1996). A district court's choice between two permissible views of evidence cannot be clearly erroneous. Estate of Davis, 115 F.3d at 1393-94; Hylton v. John Deere Co., 802 F.2d 1011, 1014 (8th Cir.1986). When we review a judgment entered on a verdict favorable to a plaintiff in an age discrimination case, the McDonnell Douglas presumptions fade away, and we must decide whether the record supports the ultimate findings of discrimination. Rademaker v. Nebraska, 906 F.2d 1309, 1311 (8th Cir.1990).
To establish a prima facie case of discrimination under the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq., Tadlock must show: (1) he is a member of a protected age group; (2) he was performing his job at a level that met his employer's legitimate expectations; (3) he suffered an adverse employment action; and (4) he was replaced by a younger person. Fisher v. Pharmacia & Upjohn, 225 F.3d 915, 919 (8th Cir.2000). Tadlock was a member of a protected age group, was performing his job satisfactorily and was replaced by a younger person.
The FDIC argues the district court erred in finding age discrimination in the absence of sufficient...
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