Villescas v. Abraham, 01-1389.

• Decision Date: 27 November 2002
• Docket Number: No. 01-1389.,01-1389.
• Citation: 311 F.3d 1253
• Parties: Carlos VILLESCAS, Plaintiff-Appellee, v. Spencer ABRAHAM, Secretary of the Department of Energy, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

311 F.3d 1253

Carlos VILLESCAS, Plaintiff-Appellee, v. Spencer ABRAHAM, Secretary of the Department of Energy, Defendant-Appellant.

No. 01-1389.

United States Court of Appeals, Tenth Circuit.

November 27, 2002.

Ara B. Gershengorn, Attorney, Appellate Staff Civil Division, Department of Justice, Washington, D.C. (Robert D. McCallum, Jr., Assistant Attorney General; Marleigh D. Dover and August E. Flentje, Attorneys, Appellate Staff Civil Division, Department of Justice, Washington, D.C.; and John W. Suthers, United States Attorney, District of Colorado, Denver, CO, with her on the briefs), for Defendant-Appellant.

Darold W. Killmer (Mari Newman with him on the brief), Miller, Lane, Killmer & Greisen, LLP, Denver, CO, for Plaintiff-Appellee.

Before BRISCOE, ANDERSON, and O'BRIEN, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Appellant Spencer Abraham, Secretary of the Department of Energy, appeals from a district court judgment awarding Carlos Villescas, a federal employee, $50,000 in compensatory damages for emotional distress, and $152,530.85 in attorney's fees and costs on a retaliation claim under the Age Discrimination in Employment Act, 29 U.S.C. § 633a (ADEA).

The narrow dispositive question is whether 29 U.S.C. § 633a(c) waives the sovereign immunity of the United States from an ADEA action seeking solely compensatory damages for emotional distress arising from retaliation for engaging in protected conduct. We hold that it does not. Accordingly, exercising jurisdiction under 28 U.S.C. § 1291, we reverse the judgment of the district court awarding damages, fees and costs against the appellant.

BACKGROUND

A.

As relevant to this appeal—and little of that remains from this litigation—Carlos Villescas, an employee of the Department of Energy from 1979 to 1989,¹ was asked by a former co-worker to testify against the Agency in both administrative and court proceedings brought by that employee under Title VII² and the ADEA. When Villescas agreed, he was subjected by the Deputy General Counsel of the Western Area Power Authority (WAPA), a part of the Department of Energy, to an exceptionally intrusive and visible investigation into his private life and alleged wrongdoing on the job. After Villescas testified against the government, the same Deputy General Counsel referred information gleaned from her investigation to the Inspector General (IG) of the Department of Energy. The referral was in the form of a complaint, replete with accusations and strong suggestions for severe action against Villescas. The IG declined to act on this complaint, stating, essentially, that the quality of the allegations was insignificant and also citing statute of limitations grounds.

On April 6, 1998, Mr. Villescas filed his Amended Complaint in this action, alleging that the Department of Energy and the Department of Justice violated his rights under Title VII and his rights under § 633a of the ADEA, by retaliating against him for his agreement to testify and his testimony in support of another worker's Title VII and ADEA claims. Appellant's App. at 21-33. His retaliation claims were identical: alleged wrongful investigation and wrongful referral to the IG. Id. He also alleged that the defendants violated the Privacy Act of 1974, 5 U.S.C. § 552a(g)(5).

The Amended Complaint sought declaratory and injunctive relief as to past and future retaliation and any adverse employment actions; actual economic damages; compensatory damages, including those for past and future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses; pre- and post-judgment interest; and attorneys' fees and costs. Appellant's App. at 32.

The Privacy Act claim and the entire action against the Department of Justice were dismissed on motions by the defendants. The Title VII claim against the Secretary of the Department of Energy was tried to a jury beginning on December 4, 2000. The jury returned a verdict against Villescas, specifically finding that the Secretary had taken no adverse action against him. Id. at 96.

On December 11, 2000, several days after the jury trial, Mr. Villescas' ADEA claim was tried to the court in a trial lasting less than one day. The court, relying on evidence introduced at the jury trial and some additional testimony by Mr. and Mrs. Villescas, found that the investigation and referral in question constituted unlawful retaliation for testifying in an ADEA case, causing Mr. Villescas emotional distress. Specifically, the district court found that the investigation was likely to deter Villescas from testifying (although it did not), and that the investigation and referral carried a "significant risk of damage to reputation and humiliation," Id. at 89-90 (although no damage to reputation was found).

The district court then found that Mr. Villescas suffered damage in the form of "humiliation, embarrassment [and] emotional distress...." id. at 91, and awarded him $50,000.00 as compensation solely for that damage. Id. at 92, 96. The court subsequently awarded Mr. Villescas attorney's fees in the amount of $150,192.50, plus interest, and costs in the amount of $2,338.35.

B.

This appeal from the judgment on those amounts is significant for what is not appealed, and therefore conceded, as much as for the narrow, and solely legal question presented. As to the former, we take it as conceded by the government (unless sovereign immunity overrides such a concession), that 29 U.S.C. § 633a(a) encompasses claims for retaliation; and that the retaliation in this case caused Mr. Villescas emotional distress and humiliation. We also take it as conceded by the government that the investigation and referral in question constituted the type of "personnel actions" contemplated by § 633a(a), even though they did not affect Mr. Villescas' job, pay, promotion prospects or other economic incidents of employment in any way.

Likewise, we take it as conceded by Mr. Villescas that he suffered no damage except emotional distress and humiliation (in which we include embarrassment), and is entitled to no relief on other grounds. In short, then, this federal employee ADEA retaliation action, as presented to us, boils down to one for compensation for noneconomic, intangible harms of emotional distress and humiliation, and attorney's fees.

As for what is appealed, the government raises the following two legal issues: (1) Does 29 U.S.C. § 633a(c), which authorizes "legal or equitable relief," permit an award of compensatory damages in an action solely for emotional distress? and (2) Does sovereign immunity preclude such an award under § 633a(c)? Appellant's Br. at i. The government also challenges the award of attorney's fees. The issues as stated by the government make no mention of retaliation as the cause of action. For his part, Mr. Villescas insists, correctly, that the issues relate not just to compensatory damages for discrimination generally, but specifically to retaliation for engaging in protected conduct—which is what was alleged in the district court and is the basis for the court's findings and judgment.

These are all legal questions which we review de novo.

DISCUSSION

I.

The government's two issues, as we recast them, are whether § 633a(c) of the ADEA permits separate damages for emotional distress in a retaliation claim, and whether such damages are precluded by sovereign immunity.³ Those issues tend largely to overlap for purposes of our disposition, since it is Villescas' view that § 633a(c) unequivocally permits such damages. That is, if the statute clearly permits separate compensatory damages for emotional distress in a retaliation case, it follows that Congress waived the government's immunity from actions for those damages. However, it is more appropriate to address the subject under the constraints of sovereign immunity.

A waiver of the Federal Government's sovereign immunity must be unequivocally expressed in statutory text, see e.g., United States v. Nordic Village, Inc., 503 U.S. 30, 33-34, 37, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992), and will not be implied, Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95, Ill S.Ct. 453, 112 L.Ed.2d 435 (1990). Moreover, a waiver of the Government's sovereign immunity will be strictly construed....

Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996). The Court will "constru[e] ambiguities in favor of immunity," United States v. Williams, 514 U.S. 527, 531, 115 S.Ct. 1611, 131 L.Ed.2d 608 (1995). And, "limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied." Lehman v. Nakshian, 453 U.S. 156, 161, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981).

A.

In general, as to non-government employees, the ADEA, enacted in 1967, (codified as amended at 29 U.S.C. §§ 621-34), "broadly prohibits arbitrary discrimination in the workplace based on age." Lorillard v. Pons, 434 U.S. 575, 577, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978). The substantive anti-discrimination provisions of the Act are patterned on Title VII, while its remedial and procedural provisions are based on parts of the Fair Labor Standards Act of 1938 (FLSA),⁴ subject to certain modifications and limitations. 29 U.S.C. § 626(b); see McKennon v. Nashville Banner Pub'g Co., 513 U.S. 352, 357, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995); Comm'r v. Schleier, 515 U.S. 323, 325-26, 115 S.Ct. 2159, 132 L.Ed.2d 294 (1995); Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979); Lorillard, 434 U.S. at 578-80, 98 S.Ct. 866.

In a private-sector ADEA suit the district court is authorized to afford "such legal or equitable relief as may be appropriate to effectuate the purposes of" the ADEA. 29 U.S.C. § 626(b) and (c). That relief may include "without limitation" judgments compelling reinstatement, backpay, payment of wages owed, injunctive relief,...