Nance v. Maxwell Fed. Credit Union , 186 F.3d 1338 ( 1999 )

CORRECTED OPINION
PUBLISH
FILED
IN THE UNITED STATES COURT OF APPEALS
U.S. COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ELEVENTH CIRCUIT
08/31/99
THOMAS K. KAHN
CLERK
No. 98-6174
D. C. Docket No. CV 96-WI-1050-N
MARTHA NANCE,
Plaintiff-Appellant-
Cross-Appellee,
versus
MAXWELL FEDERAL CREDIT UNION (MAX),
THE MEMBERS OF THE BOARD OF DIRECTORS
OF MAX, et al.,
Defendants-Appellees-
Cross-Appellants.
No. 98-6282
D. C. Docket No. CV 96-WI-1050-N
MARTHA NANCE,
Plaintiff-Appellee,
versus
MAXWELL FEDERAL CREDIT UNION (MAX),
Defendant-Appellant.
Appeals from the United States District Court
for the Middle District of Alabama
(August 31, 1999)
Before TJOFLAT, DUBINA and HULL, Circuit Judges.
TJOFLAT, Circuit Judge:
The plaintiff in this age discrimination case has succeeded in proving
discrimination, but has failed to prove injury. Consequently, the district court’s
awards of back pay, front pay, and attorneys’ fees must be vacated.
I.
Martha Nance was a branch manager at a branch of the Maxwell Federal
Credit Union (“Maxwell”). On August 23, 1995, Nance met with Wayne
Blackwell, Maxwell’s vice president of human resources. Blackwell informed
Nance that, as a result of her unsatisfactory performance, Maxwell was no longer
willing to employ her as a branch manager. Blackwell then presented Nance with
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two options: (1) accept a demotion, including a reduction in salary, or (2) resign
and receive severance pay.
The following day (August 24), Nance took a leave of absence from
Maxwell. She never returned. She received full salary and benefits through the
end of November.1 Beginning on December 1, and continuing indefinitely, she
was classified as being on an unpaid leave of absence. She never communicated
any intention of accepting either of the options presented to her by Maxwell.
Meanwhile, Maxwell changed its mind and decided that it wanted Nance to
remain a branch manager. On October 18, Maxwell withdrew “options I and II”
and asked Nance to return to her former position as soon as possible, with the same
salary and benefits package as when she left. This offer was repeatedly reiterated
until January 15, 1996, at which time Maxwell, still having received no response
from Nance, hired another individual to fill Nance’s position. Maxwell informed
Nance, however, that it considered her to be on an unpaid leave of absence, and
that if she ever wished to return to work for Maxwell, she would be placed in a
comparable position to the one she occupied when she left.
1
For the remainder of August and throughout September, Nance was
considered to be on administrative leave. During October and November, she was
considered to be on paid vacation (and thereby exhausted her accumulated supply
of vacation benefits).
3
On June 28, 1996, Nance filed suit against Maxwell in the United States
District Court for the Middle District of Alabama. In her complaint, she alleged,
inter alia, that Maxwell discriminated against her on the basis of her age (63 at the
time of trial), in violation of the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. §§ 621-34 (1994). Nance also alleged that Maxwell was
liable for a conspiracy among certain of its employees to violate the ADEA, and on
this basis included a count of conspiracy under Alabama law. She sought back pay
covering the time from August 24 (when she left work) until the date of trial, front
pay covering the time from the date of trial until her anticipated retirement (at age
70), and attorneys’ fees.2 The district court sua sponte dismissed the conspiracy
claim before trial. The ADEA claim was tried before a jury, which, through a
special verdict form, found that Maxwell had discriminated against Nance on the
basis of her age. The court awarded Nance back pay, front pay, and attorneys’
2
Nance’s complaint also sought injunctive and declaratory relief.
Subsequent to the filing of the complaint, however, Nance did not pursue these
forms of relief. Consequently, we consider them abandoned, and treat this action
as an action solely for back pay, front pay, and attorneys’ fees. Cf. Road Sprinkler
Fitters Local Union No. 669 v. Independent Sprinkler Corp., 10 F.3d 1563, 1568
(11th Cir. 1994) (affirming district court’s holding that plaintiff abandoned a claim
that was raised in the complaint but ignored in all subsequent filings).
4
fees, in the sum of $249,945.12.3 The district court denied Maxwell’s post-trial
motion for judgment as a matter of law.4 Both parties appeal.
II.
Maxwell appeals the denial of its motion for judgment as a matter of law. It
contends that no adverse employment action was taken against Nance, and
therefore that Nance has no claim under the ADEA. Alternatively, Maxwell argues
that Nance was unable to show any injury, and therefore as a matter of law is not
entitled to back pay or front pay. We address these contentions in order.
A.
The ADEA prohibits discrimination on the basis of age “against any
individual with respect to his compensation, terms, conditions, or privileges of
employment.” 29 U.S.C. § 623(a)(1). Both “Option I” (demotion) and “Option II”
3
The award consisted of $69,945.48 in back pay (which was doubled to
$139,890.96 based on the jury’s finding of willfulness, see generally Ramsey v.
Chrysler First, Inc., 861 F.2d 1541, 1544 (11th Cir. 1988)), $76,304.16 in front
pay, and $33,750 in attorneys’ fees.
4
The motion was made at the close of Nance’s case (prior to Maxwell’s case
and the submission of the case to the jury), and renewed after the verdict was
rendered. See Fed. R. Civ. P. 50(a), (b).
5
(resignation) offered to Nance on August 23 would have constituted a change in
respect to Nance’s terms of employment. Neither option, however, was ultimately
chosen by Nance. Instead, she took a fully-paid leave of absence, during which
time Maxwell withdrew both options and informed her that she would be allowed
to remain in her present position. Consequently, argues Maxwell, no adverse
employment action was ever taken against Nance; she therefore has no claim under
the ADEA.
This contention is logically compelling and would be worthy of detailed
discussion were it not foreclosed by Supreme Court precedent. In Chardon v.
Fernandez, 454 U.S. 6, 102 S. Ct. 28, 70 L. Ed. 2d 6 (1981), the plaintiffs alleged
that they were discharged on the basis of their political affiliation. The defendants
responded by arguing that the statute of limitations had run on the plaintiffs’
claims. The Court, addressing the statute of limitations defense, held that the
statute of limitations in an employment discrimination suit begins to run at the time
the relevant employment decision is made, not at the time that the consequences of
that decision are realized. Thus, in Chardon, the Court held that the statute of
limitations began to run when the defendants made the termination decision and
notified the plaintiffs of that decision, not when the plaintiffs were actually
terminated (approximately one month after the decision). The Court reasoned that
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a violation of employment discrimination law occurs not when the employee is, for
instance, terminated, but when a decision to terminate the employee is made on the
basis of a protected personal characteristic. See id. at 8, 102 S.Ct. at 29.
Thus, returning to the present case, Maxwell violated the ADEA when it
decided to either demote or discharge Nance on the basis of her age.5 The fact that
Maxwell later changed its mind did not remedy the violation. Maxwell’s argument
that no adverse employment action occurred therefore fails.6
B.
We now turn to the question of injury. Nance claimed (and received), as
compensation for Maxwell’s discrimination, back pay and front pay. Maxwell
5
The jury found that Maxwell’s decision was based on Nance’s age; this
finding is not challenged on appeal. We therefore accept it as true.
6
Maxwell argues that Supreme Court precedent regarding when the statute
of limitations begins to run on a claim should not be controlling in regard to
whether an adverse employment action has occurred. We disagree. First, as
shown above, the Court’s reasoning is equally applicable to both questions.
Second, because of the Court’s precedent in regard to the statute of limitations,
adopting Maxwell’s argument regarding what constitutes an adverse employment
action would leave many discrimination victims without a cause of action. For
instance, if an employer notifies an employee that he will be discharged in two
years because of his race, the employee is without a cause of action – he cannot sue
after receiving the letter, because no adverse employment action has been taken,
and he cannot sue after being terminated, because the statute of limitations has run.
7
argues that there was no factual basis for such an award, because any claimed loss
of salary and benefits was not caused by Maxwell.7 Although Maxwell had
intended to change Nance’s status, in the end, Maxwell never terminated Nance or
in any way altered her terms and conditions of employment. Furthermore, in the
interim period between Maxwell’s decision to demote or terminate Nance and its
revocation of that decision, Nance continued to receive her customary salary and
benefits. Consequently, Maxwell argues, any harm suffered by Nance in the form
of lost wages and benefits is attributable to Nance’s own choices, not to any action
taken by Maxwell.
We find Maxwell’s reasoning on this point persuasive. Maxwell’s decision
to change the terms and conditions of Nance’s employment was never acted upon;
therefore, that decision did not cause Nance any harm. The only way that
Maxwell’s actions could be considered the cause of Nance’s lost salary and
benefits would be if Maxwell’s actions constituted a constructive discharge – in
7
Maxwell’s argument, both in the district court and on appeal, was usually
framed in terms of Nance’s “failure to mitigate” her damages. Upon closer
inspection, however, Maxwell’s argument is not that it caused damages that Nance
failed to mitigate, but rather that it never caused any damages at all.
Nance contends that Maxwell waived this argument by not objecting to the
verdict form, which was silent on the topic of injury/mitigation. Given that the
argument is a legal one, however, there was nothing for the jury to decide in this
regard. Maxwell raised the issue in its motion for judgment as a matter of law; this
was sufficient to preserve it on appeal.
8
other words, if the mere presentation of “options I and II” made the thought of
working at Maxwell so unpleasant that Nance reasonably felt compelled to resign.
See Hill v. Winn-Dixie Stores, Inc., 934 F.2d 1518, 1527 (11th Cir. 1991). The
district court, however, ruled as a matter of law that Maxwell’s actions did not
constitute a constructive discharge.8 With this theory of recovery eliminated, there
is no rational basis on which to conclude that Nance is entitled to back pay and
front pay as a result of Maxwell’s actions.9 Because Nance has shown no injury
caused by Maxwell, we conclude that the district court’s award of back pay and
front pay must be vacated.
III.
Nance appeals the dismissal of her conspiracy claim. The theory behind the
claim was that Maxwell was vicariously liable (based on respondeat superior) for a
conspiracy among certain individuals within the organization to commit an ADEA
8
This holding is not challenged on appeal.
9
Nance conceivably could be entitled to damages based on the vacation time
that she lost prior to the withdrawal of options I and II. See supra note 1.
Likewise, Nance possibly could have made a claim for nominal damages. Neither
of these claims, however, were presented to the district court; we therefore do not
consider them here. See Walker v. Anderson Elec. Connectors, 944 F.2d 841, 845
(11th Cir. 1991) (holding, in Title VII case, that nominal damages could not be
awarded where they had not been requested at trial).
9
violation against Nance. See generally Lawler Mobile Homes, Inc. v. Tarver, 492
So. 2d 297, 306 (Ala. 1986) (stating that a corporation may be held liable for
damages caused by a conspiracy when two or more of the corporation’s agents
were involved in the conspiracy). Nance’s claim initially was made against both
Maxwell and the relevant individuals within Maxwell. On summary judgment, the
district court dismissed the claim against the individuals on the ground that liability
under the ADEA is limited to “employers”; individuals cannot be held liable. The
district court allowed the claim against Maxwell to stand. At the beginning of the
trial, however, the district court also dismissed the conspiracy claim against
Maxwell. This latter dismissal is the subject of Nance’s appeal.
Civil conspiracy is not an independent cause of action; there must be an
underlying wrong on which the conspiracy claim is based. See Allied Supply Co.
v. Brown, 585 So. 2d 33, 36 (Ala. 1991). The allegation of a conspiracy serves
merely to expand liability for the underlying wrong to persons who were not
directly involved in the wrongful actions. See Beck v. Prupis, 162 F.3d 1090, 1099
& n.18 (11th Cir. 1998), cert. granted, – U.S. –, 119 S. Ct. 2046, – L.Ed.2d –
(1999).
In the present case, the underlying wrong is a violation of the ADEA.
Violations of the ADEA, however, are governed by a complex statutory scheme –
10
for instance, liability is limited to “employers,” punitive damages are capped, and a
claim must be filed with the Equal Employment Opportunity Commission before a
private lawsuit may be brought. Allowing a state-law conspiracy claim in an
ADEA case would permit plaintiffs to make an “end run” around this federal
statutory structure for age discrimination suits. Such evasion would surely
frustrate congressional intent. We therefore hold that the enforcement of rights
secured through the ADEA must be pursued in the manner specified in the ADEA,
not through alternative state-law mechanisms. Cf. Great Am. Fed. Sav. & Loan
Ass’n v. Novotny, 442 U.S. 366, 99 S. Ct. 2345, 60 L. Ed. 2d 957 (1979) (holding
that a federal conspiracy statute may not be used to remedy a violation of Title
VII). Consequently, we affirm the dismissal of Nance’s conspiracy claim.
Nance also appeals the amount of attorneys’ fees awarded her (contending
that the award was too low), while Maxwell cross-appeals (contending that no
attorneys’ fees should have been awarded). Attorneys’ fees are appropriately
awarded to a prevailing plaintiff in an ADEA suit. See Ramsey v. Chrysler First,
Inc., 861 F.2d 1541, 1544 (11th Cir. 1988). To qualify as “prevailing,” a plaintiff
must obtain an enforceable judgment against the defendant. See Farrar v. Hobby,
11
506 U.S. 103, 111, 113 S. Ct. 566, 573, 121 L. Ed. 2d 494 (1992).10 Because we
have vacated the plaintiff’s damages award, there is nothing in the judgment that
can be enforced. See Tunison v. Continental Airlines Corp., 162 F.3d 1187, 1190
(D.C. Cir. 1998) (“[A] judgment with no damages at all is not an ‘enforceable
judgment’ – there is simply nothing to enforce.”) We therefore vacate the award of
attorneys’ fees.
IV.
For the foregoing reasons, the portions of the district court’s judgments
awarding Nance back pay, front pay, and attorneys’ fees are VACATED. The
district court’s dismissal of Nance’s conspiracy claim is AFFIRMED. The case is
REMANDED to the district court for further proceedings consistent with this
opinion.
SO ORDERED.
10
Although Farrar was decided under 42 U.S.C. § 1988 (1994) (dealing with
attorneys’ fees in civil rights actions) rather than 29 U.S.C. § 626(b) (dealing with
attorneys’ fees in ADEA actions), the two bodies of law are generally considered
interchangeable. See Heiar v. Crawford County, Wis., 746 F.2d 1190, 1203 (7th
Cir. 1984).
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