Bohdan MAKSYMCHUK, Plaintiff-Appellant, v. Anthony M. FRANK, Postmaster General; Peter L. Garwood, General Manager, EEOC Appeals Division; US Postal Service, Defendants-Appellees.
No. 91-1257.
United States Court of Appeals, Fourth Circuit.
Argued Oct. 1, 1992. Decided Feb. 26, 1993.
987 F.2d 1072
[i]ntolerability of working conditions is assessed by the objective standard of whether a “reasonable person” in the employee‘s position would have felt compelled to resign. An employee may not be unreasonably sensitive to his working environment. Thus, the law does not permit an employee‘s subjective perceptions to govern a claim of constructive discharge. Every job has its frustrations, challenges and disappointments; these inhere in the nature of work. An employee is protected from a calculated effort to pressure him into resignation through the imposition of unreasonably harsh conditions, in excess of those faced by his co-workers. He is not, however, guaranteed a working environment free of stress.
Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir.1985) (citations omitted), cert. denied, 475 U.S. 1082, 106 S.Ct. 1461, 89 L.Ed.2d 718 (1986). Finding this standard unmet, the district court held that “it was her own voluntary relinquishment of her contract rights, not any harassment, which caused her employment with the City to come to an end.”
Reviewing this judgment under the standard set out above, we are of opinion that the district court properly found no genuine issue of material fact over whether Miss Goldsmith‘s resignation of April 23, 1986 was the result of working conditions so intolerable that a reasonable person of reasonable sensibilities would be compelled to quit. Though the behavior of the individual defendants was hardly exemplary, isolated incidents involving raised voices and flaring tempers described by Miss Goldsmith simply do not rise to the level of a calculated effort to force her resignation. When one serves as the head of an agency performing a watchdog-type function, a certain amount of conflict undoubtedly inheres in the job and is to be expected. In this setting, we simply cannot say that a genuine dispute existed as to constructive discharge, and thus we affirm the district court‘s grant of summary judgment in favor of the individual appellees.
In sum, while we hold that the district court erred in finding more than Miss Goldsmith‘s due process constitutional claims precluded by our judgment in Goldsmith I, we conclude that the court correctly entered summary judgment in favor of the defendants.11
Accordingly, the judgment of the district court is
AFFIRMED.
Alice Lucille Covington, Office of Labor Law, U.S. Postal Service, Washington, DC, argued (R. Andrew German, Asst. Gen. Counsel, Office of Labor Law, U.S. Postal Service, Washington, DC, Richard D. Bennett, U.S. Atty., Jeanette Plante, Asst. U.S. Atty., Baltimore, MD, on brief), for defendants-appellees.
OPINION
MURNAGHAN, Circuit Judge:
Bohdan Maksymchuk, an employee of the United States Postal Service (USPS), obtained on December 26, 1982 a ruling from the Equal Employment Opportunity Commission (EEOC) that the USPS had discriminated against him. Reinstatement was ordered, together with full back pay and credit for all leave. Some substantial delay took place before the USPS in 1985 offered Maksymchuk reinstatement. The USPS also provided for back pay, as it had calculated it, as well as 264 hours of annual leave. The annual leave was computed applying a cap of 240 hours annual leave. Maksymchuk was also credited with 24 hours for the partial year 1985 in which reinstatement took place up to the time of reinstatement.
Maksymchuk was dissatisfied in two respects. He felt that (1) the back pay award should include prejudgment interest, and (2) the calculation of accrued annual leave should not be limited by a cap of 240 hours. Maksymchuk, on May 28, 1986, filed in the United States District Court for the District of Maryland a complaint seeking enforcement of the EEOC order in a manner consistent with his contentions.
On December 7, 1988, the district court had the clerk enter an order enforcing the EEOC order as the court interpreted it. The district judge provided that the cap of 240 hours of accrued annual leave should apply and further concluded that Maksymchuk should not receive prejudgment interest on the back pay award.
Maksymchuk filed a timely motion for reconsideration. On April 24, 1989, the district court ordered denial of the motion for reconsideration. However, it appears that the order so denying the motion for reconsideration was somehow mislaid. Maksymchuk wrote in July and August 1991 to the district judge, asking why nothing apparently had happened. The district judge in a letter of September 17, 1991 to Maksymchuk stated that the denial order had been filed on April 24, 1989 and that copies of the order had been sent to the attorneys of record. It appears that the district judge proceeded on the assumption that what was uniformly the practice would have been the case here. However, Maksymchuk provided proof that the denial of reconsideration order had not been filed (i.e., entered on the docket) and that he and the counsel in the case, contrary to what the district judge‘s assumption had been, had never received the denial order nor was notice thereof given. He filed an appeal on November 4, 1991.
In the usual case, the time for appeal would be 30 or 60 days from the date of entry of the judgment or order. Under Federal Rule of Appellate Procedure (FRAP) 4(a), it is clear that failure to file a timely appeal leaves an appellate court without jurisdiction to consider the merits. See, e.g., Browder v. Director, Dep‘t of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521 (1978). The date of November 4, 1991 was considerably more than 60 days after April 24, 1989. Yet, while the order denying the motion for reconsideration was dated April 24, 1989, it would appear that the statement that the filing had then occurred was not correct, or, at least, that entry of the order had not then taken place. The docket entry appearing next to the April 24, 1989 date states that the original was missing and that a signed copy of the denial order actually was entered by the clerk on December 3, 1991. Maksymchuk, upon learning the fact that the order had been signed, wasted no time.1 He did not bother to make a motion for extension of time to appeal. Instead, he promptly proceeded to file the appeal.
However, it appears that entry of the order denying reconsideration actually only occurred on December 3, 1991. The appeal was filed on November 4, 1991, and was, therefore, timely.
The provisions of
The difference in treatment of “entry” on the one hand and “notice of filing” on the other reflects that genuinely alert counsel, while completely stymied if no order has been entered, can, without notice, periodically examine the docket to secure information which has been entered even though the party or counsel has not been notified. See Hensley v. Chesapeake & O. Ry., 651 F.2d 226, 229-31 (4th Cir.1981) (counsel have a duty to inquire about the status of their cases, and the mere failure to receive notice of an entry of an order is, by itself, insufficient to extend the time for appeal). Accordingly, we have jurisdiction to address on the merits Maksymchuk‘s claim to an increased award of annual leave over the amount calculated by the USPS and to prejudgment interest.
That result is buttressed by the consideration that remedial awards under Title VII are to make the injured parties whole, not to provide a windfall. See Smallwood v. United Air Lines, 728 F.2d 614, 618 n. 7 (4th Cir.1984), cert. denied, 469 U.S. 832, 105 S.Ct. 120, 83 L.Ed.2d 62 (1984).
Turning to the back pay prejudgment interest question, we find that a remand is necessary. The EEOC, in Maksymchuk‘s case, did not resolve the question of prejudgment interest by explicitly stating that its award of back pay was “without” interest. The EEOC had ruled: “In order to remedy its past discrimination against appellant, the agency shall . . . [a]ward to appellant backpay . . . including all pay adjustments.” The order could have intended an award “with” or “without” interest. While there were arguments made that the USPS enjoyed sovereign immunity and had never consented to being sued for interest, nevertheless, that contention was exploded by the decision in Loeffler v. Frank, 486 U.S. 549, 556, 558, 108 S.Ct. 1965, 1969, 1971, 100 L.Ed.2d 549 (1988) (“Title VII authorizes interest awards as a normal incident. . . . Congress is presumed to have waived any otherwise existing immunity of the Postal Service from interest awards.“).3 Although the 1988 opinion in Loeffler is subsequent to the 1982 EEOC decision, Loeffler indicates that the Postal Reorganization Act in 1970 removed the mantle of sovereign immunity for the USPS. Id. at 555-56, 108 S.Ct. at 1969-70; see also Nagy v. United States Postal Serv., 773 F.2d 1190, 1192-93 (11th Cir.1985) (“[W]e hold that the language does authorize the collection of interest on a Title VII back pay award from an entity, such as the Postal Service, that has generally waived its sovereign immunity.“). A postjudgment interest award against the USPS also is not barred by sovereign immunity because of the broad waiver of sovereign immunity under the Postal Reorganization Act.4
We therefore remand the case for the district court‘s discretionary determination as to whether prejudgment interest is appropriate in the instant case. In so doing, we note that there are authorities that would affect the exercise of that discretion. Prejudgment interest is commonly denied when the back pay award is not readily determinable or when the plaintiff fails to raise the issue in a timely or an appropriate manner. See, e.g., Scales v. J.C. Bradford & Co., 925 F.2d 901, 909 (6th Cir.1991) (“The award or denial of pre-judgment interest is within the sound discretion of the trial judge. Because [the plaintiff] did not request any prejudgment interest in her damage calculation, we find no abuse of discretion in this case.” (citation omitted)); Domingo, 727 F.2d at 1446 (“The fact that the amount of backpay is not readily determinable weighs against awarding prejudgment interest.“).
However, the district court‘s discretion should be exercised bearing in mind the “make-whole” policy of Title VII. See, e.g., Albemarle Paper Co. v. Moody, 422 U.S. 405, 421, 95 S.Ct. 2362, 2373, 45 L.Ed.2d 280 (1975) (The “purpose of Title VII . . . [is] ‘to fashion the most complete relief possible . . . to make the victims of unlawful discrimination whole. . . .‘” (quoting 118 Cong.Rec. 7168 (1972))); Pecker v. Heckler, 801 F.2d 709, 711 (4th Cir.1986) (“We recently stated the standard to be applied by the courts of this circuit in determining what is an appropriate remedy under the [Title VII]: ‘[O]ur objective is to place plaintiff in a position as near as possible to where she would have had discrimination not occurred.‘” (citation omitted)). A dollar tomorrow, unless interest is added, does not equal a dollar today. See, e.g., Pegues v. Mississippi State Employment Serv., 899 F.2d 1449, 1453 (5th Cir.1990) (“Interest is compensation for the use of funds; it is not awarded as a penalty against a defendant. We have stated in this Circuit that under Title VII interest is an item that ‘should be included in back pay’ to make a victim whole.” (footnotes omitted)); see also Clarke v. Frank, 960 F.2d 1146, 1153-54 (2d Cir.1992) (“[W]e have held that ‘it is ordinarily an abuse of discretion not to include pre-judgment interest in a back-pay award. . . .‘” (citation omitted)); McKnight v. General Motors Corp., 973 F.2d 1366, 1372-73 (7th Cir.1992) (“In more recent cases, we have cabined [the] discretion [of district courts] somewhat. The time has come, we think, to generalize, and to announce a rule that prejudgment interest should be presumptively available to victims of federal law violations.” (citation omitted)).
Accordingly, the judgment is
AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.
WIDENER, Circuit Judge, concurring:
I concur in the result and in all of the opinion down to the beginning of the last paragraph on page 1076, commencing with the words “[t]urning to the back pay prejudgment interest question. . . .”
I do not think it is either appropriate or necessary, and therefore dicta, to so channel the discretion of the district judge before he has even exercised it.