John H. Lewis v. Federal Prison Industries, Inc., a Corporation Chartered Under the Laws of the United States , 953 F.2d 1277 ( 1992 )

HILL, Senior Circuit Judge:

Appellant, a former employee of appel-lee, Federal Prison Industries, challenges the district court’s conclusion that, although appellant established his case of constructive discharge in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 633a, appellee’s offer of reinstatement six weeks after his discharge “cut off” his right to recover lost wages and benefits. Although normally such an offer would indeed terminate rights to recover lost income or benefits, we agree with appellant that, in this case, the circumstances of his discharge nullify the remedial effects that such an offer would usually engender.

FACTS

Appellee, Federal Prison Industries, (“FPI”), employed appellant, John H. Lewis, from May 28, 1970 through December 29,1982 at the Federal Correctional Institution (“FCI”) in Tallahassee, Florida. For the last several years of his employment, Lewis held the position of woodcrafter assembly foreman, and reported to a general foreman, William C. Tidwell.

As we have already noted in a previous opinion, Lewis v. Federal Prison Industries, 786 F.2d 1537 (11th Cir.1986), the factories manager, Scott Graham, hired thirty-four year old Patty Baker in 1981, ostensibly for the position of assistant assembly foreman. Tidwell, however, rather than Lewis, supervised Baker, and by the fall of 1981, Tidwell had informed Lewis that he would replace him with a woman. Soon after Lewis became eligible for retirement, Tidwell initiated a campaign of harassment designed to force Lewis’ early retirement. Although Tidwell knew that a doctor had prescribed valium for Lewis, and that pressure at work would upset him, Tidwell made Lewis “follow the book to the letter,” and ensured his continued discomfort at work.

Tidwell at first primarily directed verbal abuse at Lewis. For example, he upbraided Lewis in the presence of other FPI and FCI employees; he also advised other employees to avoid Lewis. Tidwell often reminded Lewis that Patty Baker would replace him, and that Lewis should “go ahead and retire.” By March, 1982, however, Tid-well’s harassment had intensified. Tidwell told Lewis that if he insisted on remaining at FCI, he would not permit him to sit. Tidwell therefore directed others to remove Lewis' desk chair, and to move his desk into the middle of an open area so that Tidwell could easily observe him at all times.

Tidwell continued to pressure Lewis to retire. In April, 1982, he advised Lewis that his current performance evaluation would be his last satisfactory one. Inmates and others, furthermore, at times observed Tidwell shouting at Lewis. In July, 1982, Tidwell charged Lewis with criminal activity at the facility, but the FCI administration dropped the charges when a subsequent investigation revealed that Tid-well had made at least one false statement regarding the allegations. Nonetheless, in July and August, 1982, Tidwell “coun-selled” Lewis for certain production problems; another foreman testified that Tid-well blamed Lewis for problems caused by other employees.

In August, 1982, Lewis consulted his doctor, Dr. Henry, who prescribed medication for Lewis’ nerves and ordered him to take a week off from work. When Lewis returned to work, he submitted a certificate from Dr. Henry, stating that Lewis suffered from “acute agitated depression.”

On October 4, 1982, Tidwell gave Lewis the poor six-month performance that he had promised. The next day, Dr. Henry placed Lewis on immediate sick leave, and advised him not to return to work. Lewis continued to receive treatment from Dr. Henry and from a psychiatrist, Dr. Moore, both of whom advised him not to return to FCI. On December 29, 1982, Lewis applied for retirement.

On January 5, 1983, Warden Joseph P. Bogan offered Lewis reinstatement to his former position at FCI. Both Dr. Henry and Dr. Moore, however, warned Lewis that he should not return to work at FCI, and Lewis rejected reinstatement.

JUDICIAL PROCEEDINGS

On January 24, 1983, Lewis filed suit in the United States District Court for the Northern District of Florida, alleging that the appellee had constructively discharged him in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 633a (“ADEA”). In its initial judgment, the court concluded that Lewis failed to establish a prima facie case of age discrimination; it reasoned that it could not hold FPI responsible for Tidwell’s conduct. This court reversed, holding that FPI’s management had actual and constructive knowledge of many of the discriminatory actions directed against Lewis, and knew or should have known that no one had implemented effective remedial measures. This court therefore held that Lewis had established a prima facie case against FPI for age discrimination, and remanded the case for further proceedings. Lewis, 786 F.2d at 1545.

On remand, the district court heard additional argument, and reconsidered the evidence adduced at the previous trial. The court then concluded that FPI’s explanation for Lewis’ resignation was pretextual, and that FPI had indeed constructively discharged him in violation of the ADEA. The court also concluded, however, that Lewis curtailed his right to recover lost wages and benefits when he rejected FPI’s offer of reinstatement six weeks after his constructive discharge. The court therefore awarded Lewis only the wages and increased retirement benefits that he had lost during the six-week period between his constructive discharge and the warden’s offer of reinstatement, and directed the parties to calculate those damages. The court subsequently entered an order awarding Lewis net back pay of $940.89 plus interest, an increase in retirement benefits of $4.00 per month, and an increase in Mrs. Lewis’ survivor annuity by $2.40 per month.

Lewis then filed this appeal challenging the district court’s limitation of his right to recover lost wages and benefits to the six-week period before the offer of reinstatement.

ISSUES

Lewis now challenges the district court’s conclusion that he unreasonably rejected appellee’s offer of reinstatement. Lewis also contends that the court abused its discretion in its award of damages under the ADEA. Lewis finally argues that the district court should have awarded him attorneys’ fees under the ADEA.

DISCUSSION

The Offer of Reinstatement

We must first consider whether Lewis reasonably rejected Warden Bogan’s offer of reinstatement, for our resolution of that issue will determine whether we need address his other contentions. As a general rule, “a Title VII claimant’s rejection of a defendant’s job offer normally ends the defendant’s ongoing responsibility for back pay_” Ford Motor Co. v. EEOC, 458 U.S. 219, 241, 102 S.Ct. 3057, 3070, 73 L.Ed.2d 721 (1982). As the Supreme Court has noted, such a rule “encourage[s] Title VII defendants promptly to make curative, unconditional job offers to Title VII claimants, thereby bringing defendants into ‘voluntary compliance’ and ending discrimination far more quickly than could litigation proceeding at its often ponderous pace.” Ford Motor Co., 458 U.S. at 228, 102 S.Ct. at 3063. Nonetheless, although the law encourages claimants to accept offers of reinstatement, it does not, in every circumstance, require them to do so, and for that reason, we have established in this circuit that “front pay is an available remedy under the ADEA.” O’Donnell v. Georgia Osteopathic Hospital, 748 F.2d 1543, 1551 (11th Cir.1984). See also Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1562 (11th Cir.1988) (“Admittedly, awarding prospective relief involves some risk of uncertainty, but that in itself does not preclude an award of such relief.”)

In Stanfield v. Answering Service, Inc., 867 F.2d 1290, 1296 (11th Cir.1989), we held that, once an employer makes a “good faith” offer of reinstatement, “claimants forfeit their right to reinstatement unless their refusal of the employer’s offer is reasonable.” In the instant case, the evidence amply supports the district court’s implicit finding that Warden Bogan made his “unconditional” offer of reinstatement in good faith. Nonetheless, our analysis does not end with this comfortable conclusion, for our examination of Lewis’ reasons for rejecting Bogan’s offer compels us to agree with appellant that this rejection was “reasonable.” Stanfield, 867 F.2d at 1296.

As the Fourth Circuit has noted in a similar context, the “infinite variety of factual circumstances that can be anticipated do not render any remedy of front pay susceptible to legal standards for awarding damages.” Duke v. Uniroyal, Inc., 928 F.2d 1413, 1424 (4th Cir.1991). Several courts, however, have outlined factors they consider when determining whether reinstatement, or front pay, provides the more appropriate remedy for a successful claimant.

Many courts, including this one, have noted that “[f]ront pay may be particularly appropriate in lieu of reinstatement where discord and antagonism between the parties would render reinstatement ineffective as a make-whole remedy.” Goldstein v. Manhattan Industries, 758 F.2d 1435, 1449 (11th Cir.1985), cert. den. 474 U.S. 1005, 106 S.Ct. 525, 88 L.Ed.2d 457 (1985). See also E.E.O.C. v. Prudential Federal Savings and Loan Ass’n, 763 F.2d 1166, 1172 (10th Cir.1985), cert. den. 474 U.S. 946, 106 S.Ct. 312, 88 L.Ed.2d 289 (1985); Dickerson v.. Deluxe Check Printers, Inc., 703 F.2d 276, 281 (8th Cir.1983).

In Eivins v. Adventist Health System, 660 F.Supp. 1255 (D.Kan.1987), another court listed several factors that would help determine the advisability of front pay, rather than reinstatement, as a remedy for victims of discrimination. In Eivins, the court favored front pay over reinstatement where “defendant’s management ... intimidated or threatened [claimant],” and where “the evidence indicated [ ] that [claimant’s] self worth was crushed by his dismissal.” 660 F.Supp. at 1263.¹

Courts have also considered the date of a claimant’s retirement in considering the advisability of front pay. In Blum v. Witco Chemical Corp., 829 F.2d 367, 376 (3rd Cir.1987), for example, the court held that front pay was an appropriate remedy, and noted that it would “assume[] that the plaintiff would have remained with the employer until normal retirement age [ ] [s]ince plaintiffs were all within eight years of ... retirement_” See also Eivins, 660 F.Supp. at 1264 (“The plaintiff is 57 years old and nearing the usual age of retirement. Because the time period for which front pay is being awarded is relatively short, reinstatement may be inappropriate.”)

In the instant case, Dr. Moore, a psychiatrist treating Lewis, testified that Lewis experienced a “reactive” depression in response to the discriminatory acts that occurred at FCI. Dr. Moore further testified that, although Lewis’ health had improved since he left FCI, his symptoms would return should he return there:

Based upon the degree of depression, agitation, physiological complaints that I saw with Mr. Lewis, and the subsequent relief of many of these complaints that I have seen with Mr. Lewis subsequent to his not returning to work, and based upon my clinical experience, it’s my impression that should Mr. Lewis return to that environment we would have a return of significant symptoms.

* * * * * *

My opinion is that should he have to return to that place of employment, that those symptoms would be significantly increased, that Mr. Lewis would again be depressed, that he would again become anxious, that he would again demonstrate psychosomatic disfunction.

Dr. Moore also testified that Lewis’ depression would recur if he returned to FCI, even if no additional discrimination occurred there. Finally, he characterized Lewis’ “... decision to stay away from that former place of employment” as “a very good, sound, healthy decision.”

In our view, Lewis’ circumstances offer mány of the factors that courts traditionally consider when assessing the value of front pay. His experiences at the courthouse involved him in antagonistic relationships with his supervisors, who intimidated him and isolated him from his peers. At the time of his constructive discharge, moreover, Lewis was only four years away from the date of his mandatory retirement, so we may fairly assume that Lewis would have remained at FCI until the time of that retirement.

For our purposes today, however, the most important factor remains the evidence adduced at trial that the discrimination endured by Lewis in effect disabled him. We note in this regard that the Ninth Circuit has recently approved front pay as a remedy where “... there is evidence from a mental health practitioner and doctors that [claimant] could not work at all or, as one said, should never work at any branch of the [employer] again.” Ortiz v. Bank of America National Trust and Savings Association, 852 F.2d 383, 837 (9th Cir.1988). In this case, the uncontradicted evidence showed that Lewis could not return to his former work environment without suffering a return of the symptoms that so debilitated him in the first place. In this instance, Warden Bogan’s offer of reinstatement, however sincere, became a futile gesture that did not, under the facts of this case, terminate Lewis’ claim.

We caution, as have other courts before us, that “[b]ecause of the potential for windfall, [the] use [of front pay] must be tempered.” Duke v. Uniroyal, Inc., 928 F.2d 1413, 1424 (4th Cir.1991). Front pay remains a special remedy, warranted only by egregious circumstances. Although we have listed several factors that may prompt our resort to this sort of relief, we emphasize that in many cases the remedy of reinstatement will continue to suffice despite the presence of any one of these factors. Here, Lewis emerged from an antagonistic, discriminatory work environment with an emotional disturbance that rendered him unfit to return to that environment, within a time frame that left him only four years until the date of his mandatory retirement. Not every claim, however legitimate, will produce circumstances which so clearly mandate the remedy of front pay.

Attorney s Fees

The district court concluded that the language of 29 U.S.C. § 633a(c) was not sufficient to overcome either the so-called “American rule” of attorney’s fees, or the doctrine of sovereign immunity. We agree.

The “American Rule” provides that, unless there exists statutory or contractual provisions to the contrary, litigants must pay their own attorney’s fees. Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). Thus the party seeking attorney’s fees pursuant to statutory authority must demonstrate that Congress clearly intended to allow such recovery. Fitzgerald v. United States Civil Service Commission, 554 F.2d 1186, 1189 (D.C.Cir.1977).

Congress explicitly permitted claimants in the private sector to recover attorney’s fees by incorporating Section 216(b) of the Fair Labor Standards Act (“FLSA”) into the ADEA. See 29 U.S.C. § 626(b). Section 216(b) of the FLSA permits courts to “allow a reasonable attorney’s fee to be paid by defendant_” Although Congress subjected government employees to the Act in 1974, it did not apply Section 216 to the public sector. Instead, Congress provided only that a federal claimant could receive “such legal and equitable relief as will effectuate the purposes of this chapter.” 29 U.S.C. § 633a(c). In 1978, moreover, Congress further amended the ADEA to provide that its provisions applicable to government employees “shall not be subject to, or affected by, any provision of this chapter [other than one irrelevant exception] and the provisions of this section” 29 U.S.C. § 633a(f). Thus, in Lehman v. Nakshian, 453 U.S. 156, 101 S.Ct. 2698, 2705, 69 L.Ed.2d 548 (1981) the Supreme Court characterized this section as “self-contained and unaffected by other sections .... ”

We recognize that in Lehman the Supreme Court was expressly addressing only the right to a jury trial, a procedural matter under Byrd v. Blue Ridge Rural Electric Co-op., 356 U.S. 525, 536, 78 S.Ct. 893, 900, 2 L.Ed.2d 953 (1958). Nonetheless, as another court has reasoned:

Just as section 7 expressly authorizes a jury trial in private ADEA cases, section 7 expressly incorporates the provisions of the FLSA ... authorizing awards of attorneys’ fees and liquidated damages. If Congress had intended that the same type of relief should be available in federal employee ADEA cases it could easily have included the same language in section 15. Congress’ failure to do so suggests that it intended that FLSA remedies would not be available in federal employee ADEA cases.

Muth v. Marsh, 525 F.Supp. 604, 608 (D.D.C.1981).

The United States remains “immune from suit save as it consents to be sued_” Lehman v. Nakshian, 453 U.S. 156, 101 S.Ct. 2698, 2701, 69 L.Ed.2d 548 (1981). (citation omitted). If Congress had intended to permit claimants to recover attorney’s fees in suits against the government under the ADEA, then it had ample opportunity to do so. In both private sector ADEA and Title VII cases, Congress explicitly authorized attorney’s fees. Its failure to include such provisions in this context compels us to determine that Congress did not intend to provide this remedy for public sector litigants.

CONCLUSION

We REVERSE the district court’s conclusion that Lewis’ rejection of his employer’s offer of reinstatement curtailed his right to recover lost income and benefits until the date of his mandatory retirement. We AFFIRM, however, the district court’s conclusion that 29 U.S.C. § 633a does not authorize us to award attorney’s fees to claimants in the public sector. Although appellant requests that we “guide” the district court in its calculation of the damages owed him by appellee, we choose instead to REMAND the matter to the district court so that it may determine the damages due appellant.

REVERSED in part, AFFIRMED in part, and REMANDED.

1 . The district court also noted that:

Although defendant attempts to paint a rosy picture of the warm relationship between its employees and plaintiff and the open arms with which it awaits plaintiffs return, common sense dictates otherwise.

Eivins, 660 F.Supp. at 1263. We hesitate, however, to rely too heavily on this language, for it is all too easy to characterize an offer of reinstatement in cynical terms. We remain mindful, nonetheless, that an employers’ past conduct can sometimes illuminate hidden motives in post-litigation behavior. Not every employer in these circumstances undergoes a moral reawakening. On the other hand, not every employer, once it appreciates the extent of illegal discrimination, permits it to continue.