John H. Lewis v. Federal Prison Industries, Inc., a Corporation Chartered Under the Laws of the United States

LEWIS, Plaintiff-Appellant, John H. INC., INDUSTRIES, PRISON

FEDERAL laws corporation under the chartered States, Defendant-Appel United

lee. 88-3570, 88-3774.

Nos. Appeals, States Court

United Circuit.

Eleventh 18, 1992.

Feb. Dariotis, Dariotis, Kahn &

Terrence T. Kercher, Miller, R. David K. Broad Michael Fla., Cassel, Tallahassee, plaintiff- for & appellant in No. 88-3570. Turner, Dariotis, Stephen M.

Terrence T. Kercher, Miller, K. Talla- R. David Michael Fla., hassee, plaintiff-appellant, No. 88-3774. Sukhia, Atty., Tal-

Kenneth Asst. U.S. W. lahassee, Fla., defendant-appellee. BIRCH, TJOFLAT, Judge, Chief Before HILL, Senior Circuit Judge, and Circuit Judge.

HILL, Judge: Circuit Senior appel- former Appellant, a Industries, challenges lee, Federal Prison that, al- court’s conclusion the district though appellant established case discharge in violation of constructive Act, Employment Age Discrimination 633a, appellee’s offer reinstate- U.S.C. § ‍​‌‌​‌‌​​‌​​​‌‌‌​‌​‌​​‌‌​‌‌‌​‌‌‌​​‌​‌​​​​​‌‌‌‌​​​‍discharge “cut six after ment weeks lost recover off” his normally such offer Although benefits. rights tо recover terminate would indeed benefits, ap- agree income we lost that, in this circumstances pellant effects discharge nullify the remedial usually engender. such an offer would facility, the FCI activity at the but criminal FACTS dropped charges a when administration Industries, Prison Federal Appellee, that Tid- investigation revealed subsequent H. Lew- appellant, John (“FPI”), employed least one false statement had made at well through December is, May from Nonetheless, allegations. regarding the Institu- 29,1982 Federal Correctional at the August, Tidwell “coun- July and Tallahassee, For Florida. (“FCI”) in tion prob- production certain for selled” Lewis employment, years of the last several Tid- lems; foreman testified that another as- position of woodcrafter Lewis held problems for causеd blamed Lewis well general foreman, reported to a and sembly employees. other foreman, Tidwell. William C. his doc- Lewis consulted August, In previous in a already noted As we have medication tor, Henry, prescribed who Dr. Prison Indus Federal opinion, Lewis v. him to take nerves and ordered for Lewis’ Cir.1986), tries, 786 F.2d 1537 Lewis re- off from work. When a week Graham, hired manager, Scott factories work, a certificate he submitted turned Patty Baker in year old thirty-four stating suf- Henry, that Lewis from Dr. of assistant as ostensibly position agitated depression.” fered from “acute however, Tidwell, sembly foreman. Baker, by the Lewis, supervised and than 4, 1982, gave Tidwell Lewis On October informed Lewis had fall of Tidwell he performance that poor six-month him a woman. replace that he would Henry day, The next Dr. promised. had eligible for retire Lewis became Soon after leave, and Lewis on immediate sick placed campaign ment, initiated a Tidwell to return to work. Lewis advised him not early designed to force Lewis’ harassment treatment from Dr. to receive continued Although Tidwell knew that retirement. Moore, Dr. Henry psychiatrist, from a Lewis, prescribed valium for doctor had him not to return to of whom advised both him, upset pressure at and that work 29, 1982, applied December Lewis FCI. On the book to the Tidwell made Lewis “follow retirement. letter,” his continued discom and ensured 5, 1983, Joseph P. January On Warden fort at work. to his Bogan offered Lewis reinstatement primarily directed verbal Tidwell at first Henry FCI. Both Dr. position former at upbraid- example, For abuse at Lewis. Moore, Lewis Dr. warned FPI presence of other ed Lewis in the FCI, return to wоrk at that he should not he also advised other em- employees; FCI rejected reinstatement. and Lewis Tidwell often re- ployees to avoid Lewis. Patty Baker would re- minded Lewis that JUDICIAL PROCEEDINGS him, “go that Lewis should ahead place March, 1982, however, Tid- By and retire.” suit in January Lewis filed On had intensified. Tidwell well’s harassment for the States District Court the United remaining that if he insisted on told Lewis Florida, alleging that District of Northern FCI, permit him to sit. he would not discharged appellee constructively had therefore directed others remove Tidwell Age him in of the Discrimination violation chair, and to move his desk Lewis' desk Act, 633a Employment 29 U.S.C. § open area so that into the middle of (“ADEA”). judgment, In initial him easily observe at all Tidwell could that Lewis failed to estab- court concluded times. prima age discrimina- lish a case faciе tion; FPI that it could not hold pressure Lewis to reasoned Tidwell continued conduct. This responsible for Tidwell’s April, In he advised Lewis retire. reversed, manage- holding that FPI’s court performance that his current evaluation and constructive knowl- satisfactory one. In- ment had actual would be his last furthermore, discriminatory others, edge many actions times mates and Lewis, against and knew or should shouting at directed observed Tidwell Lewis. implemented had July, charged have known that no one Tidwell Lewis with As a need address his other contentions. This court measures. remedial effective rule, general rejec “a Title VII claimant’s had established that Lewis therefore held normally job of a defendant’s offer tion against FPI for dis- case prima facie ongoing responsibility the defendant’s ends crimination, the case for fur- remanded and pay_” v. for back Ford Motor Co. Lewis, 786 F.2d at proceedings. ther EEOC, 219, 241, 102 S.Ct. 458 U.S. remand, district court heard addi- On (1982). As the Su evi- and reconsidered the argument, tional noted, “en preme Court has such a rule previous trial. The at the dence adduced courage[s] promptly defendants Title VII explana- that FPI’s then concluded court curative, job to make unconditional offers resignation pretextual, was tion for Lewis’ claimants, thereby bringing Title VII constructively FPI dis- had indeed ‘voluntary compliance’ defendants into ADEA. charged him in violation ending quickly discrimination far more concluded, however, The court also litigation proceeding at often than could its right to recover lost curtailed his Lewis Co., pace.” ponderous Ford Motor rejected FPI’s wages and benefits when at 3063. None his weeks after of reinstatement six offer theless, although encourages the law claim The court there- discharge. constructive reinstatement, accept offers of ants to wages Lewis fore awarded not, circumstance, every require does had that he increased retirement benefits reason, so, them to do and for that we have during period between lost the six-week “front in this circuit that established discharge and the warden’s constructive remedy the ADEA.” an under available reinstatement, and directed offer of Osteopathic Hospi Georgia v. O’Donnell damages. The those parties to calculate Cir.1984). (11th tal, an order subsequently entered court Weston, Inc., Sangamo v. also Castle pay of awarding $940.89 Lewis net back (11th Cir.1988) (“Ad F.2d interest, an incrеase retirement ben- plus in awarding prospective relief mittedly, month, per and an increase in efits of $4.00 uncertainty, that in some risk of but volves annuity per by $2.40 Mrs. Lewis’ survivor preclude award of such itself does not month. relief.”) challenging appeal filed this Lewis then Service, Answering Stanfield right district court’s limitation of (11th Cir.1989), 1290, 1296 we held six- lost and benefits to the recover that, “good once an makes reinstate- period before the offer of week reinstatement, “claimants faith” offer of ment. unless their to reinstatement forfeit employer’s offer is rea refusal of the their ISSUES case, the evidence In the instant sonable.” challenges the district court’s Lewis now implicit court’s amply supports the district unreasonably rejected that he conclusion Bogan “un finding made his that Warden appellee’s offer of reinstatement. Lewis good of reinstatement conditional” offer the court abused also contends Nonetheless, analysis our does not faith. damages in its under discretion conclusion, for this comfortable end with argues finally that the the ADEA. Lewis for re reasons examination of Lewis’ our him should have awarded at- district court agree compels us to jecting Bogan’s offer the ADEA. torneys’ fees under rejection was “rea appellant that this 867 F.2d at 1296. Stanfield, sonable.” DISCUSSION in a has noted As the Fourth Circuit Reinstatement The Offer of context, variety of fac- the “infinite similar anticipated that can be tual circumstances must first consider whether We any render Bogan’s do not reasonably rejected Lewis Warden awarding legal reinstatement, susceptible to standards for our resolution offer of Inc., Uniroyal, damages.” Duke v. issue will determine whether we of that usual nearing the Cir.1991). years old and Several 1413, 1424 period for they the time factors Because courts, outlined retirement. have rein- determining being whether is rela- pay is awarded when which front consider provides the more statement, short, may inappro- or front reinstatement tively successful remedy for a claim- appropriate priate.”) ant. Moore, psychia- Dr. In the instant one, courts, including this Many Lewis, testified that Lewis treating trist particularly noted that “[f]ront depression in re- a “reactive” experienced where in lieu discriminatory acts that oc- sponse to par antagonism between discord Dr. further testified at FCI. Moore curred ineffective reinstatement render ties would improved that, although health had Lewis’ remedy.” Goldstein v. make-whole as a FCI, symptoms would re- since he left Industries, 758 F.2d Manhattan return there: turn should he Cir.1985), (11th den. 474 U.S. cert. 1449 degree depression, upon the of Based (1985). L.Ed.2d 457 88 that I physiological complaints agitation, Federal v. Prudential also E.E.O.C. Lewis, subsequent Mr. saw with Ass’n, Savings and Loan complaints that I many of these relief of (10th Cir.1985), 474 U.S. cert. den. subsequent to Mr. Lewis have seen with (1985); 106 S.Ct. work, returning to and based his not Printers, Inc., Deluxe Check Dickerson v.. im- experience, my it’s upon my clinical Cir.1983). return to pression that should Mr. Lewis System, Adventist Health In Eivins v. have a return that environment we would (D.Kan.1987), F.Supp. another symptoms. significant of help factors that would court listed several determine advisability of ^{[*] [*] [*] [*] [*] [*]} reinstatement, as a than is that should he have to My opinion Eivins, of discrimination. victims employment, that place that return tо court favored front over significantly symptoms would be those management intim- “defendant’s where increased, again that Mr. Lewis would [claimant],” and where idated or threatened again he would become depressed, that indicated that “the evidence [ ] [claimant’s] again anxious, demon- that would was crushed his dismissal.” self worth disfunction. psychosomatic strate F.Supp. at 1263.1 depres- that Lewis’ Dr. Moore also testified the date of have also considered Courts FCI, recur if he returned sion would considering retirement in the ad claimant’s oc- if no additional discrimination even visability pay. In Blum v. Witco Finally, he characterized curred there. (3rd Corp., 829 Chemical stay away from “... decision to Lewis’ Cir.1987), example, the court held that as “a place employment” that former remedy, and was аn sound, healthy decision.” very good, that noted that it would “assume[] view, circumstances offer In our Lewis’ em plaintiff have remained with the traditional- ‍​‌‌​‌‌​​‌​​​‌‌‌​‌​‌​​‌‌​‌‌‌​‌‌‌​​‌​‌​​​​​‌‌‌‌​​​‍mány the factors that courts retirement ployer until normal [ ] ly assessing the value of consider when eight years plaintiffs all within were [s]ince retirement_” experiences at the court- Eivins, His See also of ... antagonistic relation- (“The him in F.Supp. plaintiff at 1264 is 57 house involved cynical mind- terms. We remain district court also noted that: statement 1. The nonetheless, attempts paint rosy ful, Although employers’ past defendant con- that an relationship picture of the warm between motives duct can sometimes illuminate hidden open employees plaintiff arms every employer post-litigation behavior. Not return, plaintiffs with which it awaits com- undergoеs rea- circumstances a moral in these otherwise. mon sense dictates hand, every wakening. the other em- On hesitate, Eivins, F.Supp. We how- at 1263. illegal appreciates ployer, the extent of once ever, heavily language, rely too on this for it discrimination, permits it to continue. easy too to characterize an offer of rein- is all Attorney Fees s who intimidated supervisors, ships peers. At from his him and isolated

him court that the The district concluded discharge, constructive of his the time 633a(c) language 29 U.S.C. was away years four moreover, Lewis was so-called overcome either the sufficient to retirement, mandatory from the date fees, attorney’s or the rule” of “American Lewis would fairly that assume so we sovereign immunity. We doctrine of the time that FCI until remained at agree. retirement. that, provides “American Rule” however, the today, purposes For our statutory contractual there exists unless remains evidence important factor most litigants contrary, must provisions to the en that the discrimination at trial adduced attorney’s Alyeska fees. pay their own We him. effect disabled by Lewis in dured Society, Pipeline Wilderness Co. the Ninth regard Circuit note 44 L.Ed.2d pay as a reme approved front recently has seeking attorney’s (1975). party Thus from a there is evidence dy where “... statutory authority must pursuant to fees and doctors practitioner health mental clearly intended demonstrate or, all as one not could work [claimant] recovery. Fitzgerald v. to allow such of any branch said, work should never Commission, Civil Service United States v. [employеr] again.” Ortiz Bank of (D.C.Cir.1977). 1186, Savings As Trust National America Cir.1988). 383, sociation, permitted claimants Congress explicitly case, evidence uncontradicted attorney’s In this private sector to recover in the not return to 216(b) could showed that Lewis of the by incorporating Section fees without (“FLSA”) suffer former work environment Act into Standards Fair Labor that so debili symptoms 626(b). ing a return of the Sec 29 U.S.C. the ADEA. See § in place. In this him in first 216(b) permits tated courts to of the FLSA tion stance, Bogan’s offer of reinstate Warden attorney’s fee to be a “allow reasonable defendant_” ges sincere, ment, became a futile Although however Con paid by not, this under the facts that did government employees ture to gress subjected claim. terminate Lewis’ 1974, apply Section in it did the Act Instead, Congress public sector. caution, have other courts as We could only a federal provided that claimant us, potential that before “[b]ecause equitable relief as legal and receive “such windfall, pay] must use [of [the] chap purposes this will effectuate Uniroyal, tempered.” Duke v. 633a(c). more ter.” 29 U.S.C. § (4th Cir.1991). Front the ADEA over, amended Congress further remedy, special a warranted pay remains applicable to provisions provide that its Al only by egregious circumstances. not be sub employees “shall government that though listed several factors we have any provision of this to, by, ject or affected relief, to this sort of may prompt our resort excep than one chapter irrelevant [other many in cases the reme emphasize we that section” provisions and thе tion] continue to will suffice dy of reinstatement Thus, 633a(f). in Lehman U.S.C. § any one of these despite presence Nakshian, 453 101 S.Ct. Here, emerged an factors. Lewis from (1981) Supreme 2705, 69 L.Ed.2d discriminatory work antagonistic, environ as “self- this section Court characterized disturbance ment with emotional sec by other and unaffected contained envi him to return rendered unfit ” tions .... ronment, him a time frame that left within the Su recognize that Lehman We years four the date manda until addressing only expressly claim, preme was Court every Not tory retirement. however trial, mat jury procedural a produce circumstances legitimate, will Elec Ridge Rural v. Blue Byrd ter under clearly mandate the so which Co-op., 356 U.S. tric (1958). Nonetheless, right to offer of reinstatement curtailed his 2 L.Ed.2d 953 reasoned: another court has until the recover lost income and benefits expressly mandatory authorizes AF- date of his retirement. We Just as section cases, private ADEA sec- jury FIRM, however, trial in court’s conclu- the district provi- incorporates expressly tion 7 that 29 633a does not autho- sion U.S.C. § authorizing sions of the FLSA attorney’s fees to claim- rize us to award liquidated fees and attorneys’ awards of Although appel- public ants in the sector. had damages. Congress intended that If requests “guide” the district lant that we of relief should be avail- type the same damages calculation of the court employee ADEA cases it in federal able by appellee, him instead to owed we choose included the same lan- easily could REMAND the matter to the district court Congress’ failure to guage in section damages so that it determine the due intended that suggests do so appellant. FLSA remedies would be available ADEA cases. part, REVERSED in AFFIRMED in part, and REMANDED. Marsh, F.Supp. Muth v. (D.D.C.1981). “immune The United States remains TJOFLAT, Judge, concurring in Chief as it consents to be

from suit save part, dissenting part: sued_” Nakshian, Lehman v. 453 U.S. I concur the court’s conclusion that 2698, 2701, (1988) (1981). (citation omitted). If had 29 U.S.C. 633a does not authorize permit claimants to recover at attorney’s intended us to fees to claimants in against govern torney’s fees in suits I public the sector.1 dissent from the ADEA, ample under the then it had ment conclusion, however, Age court’s that the opportunity private to do so. In both sec (ADEA) Employment in Act Discrimination cases, Congress tor ADEA and Title VII public pay authorizes us to award front explicitly attorney’s authorized fees. Its private employees.2 as wеll as provisions in failure to include such this This circuit has never addressed the is compels context us to determine that Con availability pay the of front in the sue of gress remedy provide did not intend to this public sector. It has determined that front public litigants. sector private is an available em CONCLUSION (1988). ployees under 29 U.S.C. 626 See § Osteopathic Hosp., Georgia O’Donnell v. We REVERSE the court’s conclu- district Inc., 1543, (11th Cir.1984).3 rejection employer’s sion that Lewis’ 748 F.2d 1551 1282; Co., p. Acquisition 1. See see also Palmer v. General 3.See also Wilson v. S & L 940 ante Admin., 300, (8th Cir.1986) F.2d (stating general Servs. (holding 787 302 rule in F.2d 1438 that attorney’s fees are not available in private employer prospective cases is “that dam 633a); proceedings administrative under Ken § ages are awarded in lieu of reinstatement when Whitehurst, 951, (D.C.Cir. nedy v. 690 F.2d 966 employee”); it is not fеasible to reinstate the Haarhues, 1982) (same). see But DeFries v. 488 Serv., Inc., 1290, Answering v. 867 F.2d Stanfield 1037, (C.D.Ill.1980) F.Supp. (holding 1045 (11th Cir.1989) (noting "frontpay 1295 is an attorney’s fees available in civil are actions un appropriate remedy private employer] for [a 633a(c)). 626(b) generally der 29 U.S.C. § § imprac where reinstatement is ADEA violation (1988) 216(b) (incorporating § of the Fair Labor inadequate”); Ramsey Chrysler ‍​‌‌​‌‌​​‌​​​‌‌‌​‌​‌​​‌‌​‌‌‌​‌‌‌​​‌​‌​​​​​‌‌‌‌​​​‍ticable or v. (FLSA), allowing Standards Act the award of First, Inc., 1541, (11th Cir.1988) 861 1545 attorney’s private reasonable fees in civil ac (stating that the "award of front [under against private employers). tions relief; such, equitable is a form of as 'the § 626] grant decision whether to lies in the ... [it] pay” monetary "front The award of covers 2. ”) (quoting discretion of the court' district Castle (future damages for future economic loss Weston, Inc., 1550, Sangamo retirement; v. (11th Cir.1988); 1563 wages) until the the amount Indus., Goldstein v. Manhattan damages mitigated by recovered 1435, (11th Cir.), employment 758 F.2d cert. de claimant's new or claimant’s un nied, 1005, U.S. reasonable refusal of 106 S.Ct. 88 L.Ed.2d reinstatement. See Wibon Co., (1985) Acqubition (stating "may par v. S & L 1433 n. that front (11th Cir.1991); ticularly private employer see abo note 10. ADEA [in infra employees un than subsume these a deals, us case before proce enforcement pre-existing der by federal brought civil action private sector. See U.S.C. dures in the Prisons Federal employer, against federal history 633a(f).5 legislative states (FPI), § Industries, under U.S.C. Inc. 633a(f) added to was “make[] that section the Su- Moreover, Congress and 633a. § indepen is section ... it clear that [633a] as 633a “self- section Court view preme other section of any dent of ADEA].” [the sections, by other and unaffected сontained Cong., 2d H.R.Conf.Rep. No. 95th ... actions governing including those in (1978), reprinted Sess. employers.” See Lehman private against Nakshian, 504, 528, 532; U.S.C.C.A.N. Nakshian, Thus, 101 S.Ct. at 453 U.S. at (1981); 69 L.Ed.2d intended that we do bor Congress has Cong., 1st Sess. 95th H.R.Rep. No. found in section 626 the remedies row from complete in is (“Section (1977) [633a] permissible reme in our determination Hence, prior determinations itself”). our 633a.6 dies section under employer private in the con- of front not mandate the federal claim- presents text do 633a Section option case. this of two enforcement ant with (1) proceed- procedures: administrative Nevertheless, arguments present I Employment Equal ing conducted permissibility against part I below Commission, “is which autho- Opportunity ADEA are based under of this provisions ... to enforce the rized status of solely on rеmedies, in- through appropriate section that O’Don- I am convinced in this case. employ- hiring of cluding reinstatement following its line of cases nell and the backpay, as will effec- ees with or without According- wrongly. reasoning decided are section,” 29 policies of this U.S.C. tuate the status of hold, regardless of the ly, I would and, (2) brought 633a(b); a civil action § per- not a employer, that front equitable legal or “for such federal court ADEA.4 remedy under the missible purposes of effectuate relief will 633a(c).7 No chapter,” 29 U.S.C. I. provisions and the text these where there history is legislative A. no where courts, The pay. any mention 1967, enacted ADEA was When the therefore, own creative left to their are employees federal specifically excluded front reme- designing the dеvises when in section 626. provisions from the remedial dy- 630(b). amending In 29 U.S.C. See § to view has come Circuit The Eleventh and 1978 to include ADEA in 1974 under sec- “equitable relief” pay as sep- front create a Congress employees, chose Ramsey v. of the ADEA. See tion 626 remedial scheme and discrete federal arate 633a(f). § 29 discord U.S.C. where in lieu of reinstatement cases] parties ren- antagonism between the and course, even if we look I contend Of 6. as a make-whole der reinstatement remedy"). ineffective 626, provisions we cannot §in the remedial 12 remedy Chemicals, Inc., Cassino v. Reichhold 817 1435, is "reasonable” for the F.2d at when it 1338, denied, (9th Cir.1987), cert. U.S. 1347 484 reinstatement, offer of claimant refuse an 1047, 785, (1988). L.Ed.2d 870 Al 108 98 1550-51; O’Donnell, Stanfield, 748 F.2d at 867 though these circuits are correct in their assess 1295-96, the claimant is F.2d at "nearing” and when legal remedy, it not ment that front is a is age, Eivens v. the normal retirement legal permissible the kind of limited relief un F.Supp. System, Adventist Health der the ADEA. See notes 12 and 14. infra (D.Kan.1987). panel This finds that the facts of present bar a reasonable refusal of the case at 626(b) provides pertinent part: 9. Section only because there were reinstatement Lewis brought chapter any action to enforce this mandatory years retirement and four until his jurisdiction grant such the court shall have expert testimony established that “the dis the legal appropriate equitable or relief as by Lewis in effect disabled crimination endured purposes chapter, to effectuate the of this in- (emphasis origi p. in the him.” See ante cluding judgments compel- without limitation nal). ling employment, motion, prо- or enforcing liability v. Consolidated Mutual Water or the for amounts Accord Smith 11. Co., Cir.1986) (10th unpaid wages deemed to be minimum or un- 1445-46 J., (Barrett, (noting paid compensation dissenting part) the under sec- overtime inexorably analysis con in Lorillard leads to the tion. 626(b) added). (emphasis the U.S.C. clusion that is well established § “[i]t 633a(b) damages legal remedy.”). provides pertinent part: Section award of future is a (1960), equitable powers cannot such 2d 13-14 Cong., Sess. No. 95th Rep. the intent expand or override used to in 1978 U.S.C.C.A.N. (1978),reprinted remedies; legal provide limited Congress to 535.12 limiting remedies to legal such as argued, have Nevertheless, a few courts wages unpaid over- “unpaid minimum ap label is remedial of which regardless liquidated dam- compensation” time "resti- damages are money when plied, that supra note 12. ADEA. аges under the See they compensatory, nal,” than tutio district court’s not sanction the We should Duke v. relief. See equitable constitute frustrate the equitable powers to use.of its Inc., 928 F.2d Uniroyal Congress. intent of argu accept this if Cir.1991).13 we Even n Third, damages award ment, however, money the is importantly, most not restitutional. in this case are ed relief because “equitable” not not in this case does the purposes the it not effectuate does ante, the quo status to the restore Lewis ADEA, the remedies all ADEA—and fir constructive obtaining before status pur- the equitable, must effectuate legal or rather, pay award occurred; the ing Awarding front the Act.14 poses of inju continuing compensates Lewis employ- promote not the continued does age discrimination—until ry continuing ability on thеir persons ment based — of older is con though there no retirement, even employer age, prohibit does rather than is a wind injury. This tinuing cause help employers discrimination, and does fall, not restitution. age discrimination to solve and workers workplace. 29 U.S.C. in the problems Second, argument that the availability contrary, 621(b). the To ADEA remedy under the equitable pay creates an incentive le of front relationship between the remedial turns remain unem- employee to discharged head. relief on its gal equitable relief and retirement, early so take eq ployed, to to award discretion Courts for the an incentive and creates speak, inad legal remedies are relief when uitable case without to settle the Moreover, federal al the converse. equate, not age discrimination addressing possible federal powers of though equitable that this is workplace. To show af broadly construed should be courts following subparts examine statute, Mitch complete relief under ford under scheme of the remedial incentives U.S. Jewelry, ell v. DeMario and, by Congress as drafted the ADEA 291-92, 80 S.Ct. sector, context, Legal in the federal relief employee legal relief private 12. In damages, Cham damages. liquidated liquidated include does not as back is defined (N.D.Ga. Cong., F.Supp. Weinberger, 13- H.R.Conf.Rep. 2d 95th Sess. No. bers Nakshian, (1978), 1984), jury reprinted in 1978 U.S.C.C.A.N. See to a trial. or part: pertinent 168-69, provides in S.Ct. at 2705-06. 626(b) owing” con- legal ] section remains in relief that [under "amounts templates limited First, includes elements: two deemed back cases is —"amounts such pecuniary or economic loss unpaid items over unpaid minimum to be job-related fringe, benefits. wages, and other compensation.” time (calcu- Second, damages liquidated it includes pecuniary equal as an lated loss) amount Helpers, Lo Chaufeurs, & Teamsters also party aggrieved compensates ‍​‌‌​‌‌​​‌​​​‌‌‌​‌​‌​​‌‌​‌‌‌​‌‌‌​​‌​‌​​​​​‌‌‌‌​​​‍the which 558, 570-71, 110 Terry, 494 U.S. v. cal No. 391 arising a will- nonpecuniary out of losses for (1990) (stating 1339, 1348, 108 L.Ed.2d 519 S.Ct. of the ADEA. violation ful eq may of monetary be a form award that a Pons, 434 U.S. See also Lorillard "restitutionary, as in such it is relief if uitable incorporates (stating that "the ADEA at 872 profits,’ 'action[sj improper disgorgement of employers be provision ‘shall the FLSA with in to or intertwined ‘incidental [or] unpaid deemed minimum liable’ for amounts wages omitted). (citations relief”) junctive compensation, under while or overtime VII, availаbility backpay matter is a of Title the Congressional poli- following analysis of 14. added). discretion") (emphasis equitable of Further, decisions the cy also undermines ADEA in the private employee cases legal in relief pay as front Lorillard, have classified courts that of those jury to a trial. the entails supra note 8. "legal the ADEA. under relief’ at 872. U.S. at able, then, only willing, if he was then, remedial scheme the skewed examine pay pocket. of the front it out of his own by addition finance presented the court'adopts today. the remedy that (which I Turning employer the federal discussion, define, person for sake of as the

B. charge workplace of the and of the em- in that, suggest in a meritorious ployee), I 1. case, recoverable, pay not the if front is only an issue in one pay Front becomes very at the outset a employer would have case: where specie of discrimination prob- the substantial incentive to reconcile employer that his dis- employee claims the For, employee. if the matter lems with the him, constructively, on actually or charged resolved, ensues, litigation is and the likely pay Front is not age. account prevails, employer employee the federal case, in failure-to-hire issue to be an may superiors his for the be blamed diffi- would be because lost future and, if discriminatory conduct not disci- speculative, they be prove; cult to would might for ad- plined, find that his chances likely to be an issue pay Front is not best. pay position di- vancement—in or —have the em- failure-to-promote beсause minished. promotion ployee rather have the would (re- wage future increment than the lost sum, prohibition against pay In front the value); present day duced to and where the encourages parties the to reconcile their the promotion cannot be awarded because quo differences and to restore the status filled, position sought has the court been This, then, goals enhances the ante. can, equity remedy, simply as an order the ADEA. employee wages of employer the the position. Returning to the actual or constructive cases, if discharge I think it clear that employee If can front the recover available, employee, if is not the ADEA, employee, and the under the the claim, pursues always will seek- he his well, may have an incentive to ing If reinstatement with back the employment relationship. dissolve employer’s discriminatory acts disabled the employee, weighing potential after here, employee, appellant claims as the employment opportu- and future seeking, eq- employee will be as additional (which willingly disclose nities leave, relief, sick uitable court, employer or the to the because

treatment, changes working and such mitigate disclosure* would necessary conditions as to restore damages) against reinstatement and back quo the status ante. pay, may opt pay although, for front — that, suggest I further without front truth, employer could the situation with the pay, the will have little incentive quo be reconciled and the status ante could prosecute a frivolous claim. The employee’s be restored. The incentive to damages that he could recover would be course, pay-will, depend opt for front on depend pay; back their amount would on principally, length several factors: elapsed employ- the time that between the (the remaining service until retirement discharge the trial or ee's settlement greater length, greater the front short, potential damages his case. available); amount back (including attorneys’ fees in (which depend will on available when private the case of a but not a federal settle); likely get case to trial 1) employer, might supra note be such attorney gives him. advice give as to little case settlement value noted, l, supra As see note the fee shift- effectively possibility and eliminate the ing hiring lawyer contingent provisions apply of the law do not a on a fee basis. employee suit, An bring brought against would a ADEA em- frivolous cases oppor- job its attendant employee to maintain his and accordingly, if the ployers;15 interested pay He also be a suit and to tunities intact. to finance lacks the funds fee, attorney employee. quick hourly getting his will rid of the A attorney an his Giv- contingent likely accomplish fee basis. both working on a settlement be cash will may en- arrangement, fact, counsel this fee the sooner the en of these ends. In opt for front employee better; to courage drags the on the as the case settlement damages, instead of reinstatement begins reign, the federal to bitterness poten- front greater the the pay: back emerging unscathed employer’s chances If the tial, encouragement. greater the the thing may The last want is a diminish. will, of pay, he employee opts for front trial. course, two obstacles. have to overcome view, my In front it can —because obstacle, by employer, erected the The first provide open-ended an fund for settlement quo can be status ante be that the will inexorably whereas back cannot—will return to employee can reestablished —the to more frivolous suits. Without front lead have to demon- employee The will work. open-ended fund it pay and the settlement that condi- satisfaction strate to the court’s employer the has little incen- produce, can to workplace have deteriorated tions at the and, cash; given the settle for tive to return, or, as cannot a extent that he such retaining counsel on employee’s chances of discriminatory acts that the in this nil, employee the contingent fee basis are sec- permanently disabled have him.16 leverage produce a settlement. has no (the duty obstacle, by the law erected ond finance employee can do is to All the that he will mitigate damages), will be sum, inclusion of losing cause. the It gainfully employed never be again.17 ADEA’s remedial scheme preparing that in apparent thus becomes setting for friction and conflict creates a trial, attorney his employee’s case for workplace the incentives of and skews rec- atmosphere that makes must create an оf their parties the dissolution toward impossibility depicts his onciliation that are in working relationship —outcomes atmosphere, This unemployable. client intent Congress’ stated direct conflict with litigation strategy, an effective if it is to be promote employment improve and to ap- trial progressively as the must worsen ability on their rath- persons of older based settled, that, if the case is not proaches, so er than age.18 possibility the trial will eliminate reinstatement as a reconciliation and thus II. remedy. realistic in which the faced with a case We are employer’s I now turn to the federal might Congress not prescribed by remedies is allowed. This incentives—if Nevertheless, reversing by obviously be employer’s primary incentive is adequate.19 to” reinstate- provision baсk "incidental federal claimant cannot shift 15. Because the ment, employee to the arguably restores the attorney’s payment fees to the federal deterring 633a, quo the same time private ante while at while the status under section workplace discriminatory on litigation acts in employee costs to the future can shift his 626(b), supra. part employer. private employer see of the under section 1, might argued reme- that the federal note by Congress prescribed ADEAare under the dies might adequate say remedies that the 19.I body governmental adequate. proper claimant, how the we can surmise because Lewis, employee’s gauge adequacy of the federal approached this case had the have would (as relevant well as tо balance the remedies pay. Had front this circuit forbade law of ADEA,however, involved) under the interests meaning that Lewis’ pay not been available— court. and not this requiring his been an order would have (under designed to conditions accompanying supra text. 16. See note 10 and being) back protect his emotional well gone might back supra p. 1279—Lewis supra 17. See note least, lawyer, very At the to work. psychiatrist, with an have been faced employee, on the other 18. Reinstatement hand, setting entirely which to advise purposes the ADEA different does effectuate the —in work; setting precedent seems our putting back to and the him—than denial of front district court’s ignoring Congress’ ‍​‌‌​‌‌​​‌​​​‌‌‌​‌​‌​​‌‌​‌‌‌​‌‌‌​​‌​‌​​​​​‌‌‌‌​​​‍court runs the risk of provisions

intention to limit the remedial separation powers the ADEA and the

n doctrinethat bars us from designing a new

remedial scheme. Since this is not our function,

proper adjudicative I dissent on

the issue of front above, I

For the reasons stated concur in

part, part. and I dissent in America,

UNITED STATES

Plaintiff-Appellee, YOUNG, Defendant-Appellant.

Charles

No. 90-3832. Appeals,

United States Court of

Eleventh Circuit.

Feb. Kent,

William M. Asst. Fedеral Public Defender, Jacksonville, Fla., plaintiff- appellant.

foster, p. supra see id. 1279. See also accompanying note 15 text. front See notes of find the infra accompanying text. 14 and and rule,” supra “prior see our I circuit realize 3, require us to follow O’Donnells note would 621(b) purposes of the states private employee 7. Section holding case. this a were not, however, follows: ADEA as follow us to O’Don- rule does bind public employee is a case. here since this nell purpose chapter therefore the It is persons based employment of older promote 633a(f) part: provides pertinent 5. Section age; prohibit ability than on arbitrary age their employment; any department, discrimination Any personnel action ways of employers find help workers and entity agency, to in subsec- or other referred to, arising impact of meeting problems from subject (a) section not be tion of this shall employment. chapter, by, any provision on of this or affected 621(b). provisions § 29 U.S.C. of this section. ... other than 1284 626(b) Inc., 1541, on the basis of wheth- First, 1545 under section 861 F.2d Chrysler damages: money er the involved holding Cir.1988).8 argument 626(b), 7(b), does relief, 29 U.S.C. aided Section equitable is categories specify of the listed which lan remedial considerably by the broader legal eq- which are of relief are and O’Donnell, 626(b), 748 guage of section However, it is clear that uitable. since 1551,9 pay is a substi that front F.2d at is compelling “employment, re- judgments reinstatement, when reinstatement tute for equitable, promotion” are instatement or See Stan- inadequate. impracticable or is Moore, Federal Practice see 5 J. 1138.21 1295; Goldstein, field, 867 F.2d 758 (1977), Congress must have meant eq reinstatement is 1449.10 Since F.2d at judg- “legal relief” to refer phrase relief, argument goes, it fol uitable so liability “enforcing ments substitute, pay, is also lows that unpaid minimum amounts deemed to be Goldstein, 758 F.2d equitable relief. unpaid compensa- or overtime at 1449. tion.” equivalence between front This assumed recovery of mone- pay, Front which is the rea equitable relief fails for three pay and wages, tary damages for lost future should is First, legal relief. In sons. classified, therefore, “legal as relief” Pons, 575, 11, 583 n. Lorillard v. 434 U.S. analysis;11 but it is not under the Court’s 871 n. legal 98 S.Ct. relief the kind of limited ADEA, i.e., (1978), Supreme distinguished Court intended under back See H.R.Conf. liquidated damages. equitable remedies available legal Opportunity Equal Employment majority Com- [T]he the circuits that have considered 8. A provi- agree mission is authorized to enforce the Circuit in the issue with the Eleventh (a) through equitable sions of subsection of this section holding relief under that front remedies, including See, e.g., section 626. Wildman v. Lerner Stores (1st Cir.1985); hiring employees with or without back- or Corp., 771 F.2d 616 Dominic York, policies of this as will effectuate Edison Co. New v. Consolidated Uniroyal Cir.1987); (2d section. Duke v. 822 F.2d 633a(b). c., (4th Cir.1991); U.S.C. § F.2d In Garrett, Co., Gregory U.S.Dist. LEXIS Mohawk Rubber Gibson v. 6, 1990), (W.D.Mo. (8th Cir.1982). the court Feb. remedy, equitable is an noted that “front held, hand, A few circuits have on the other reinstatement, granted in lieu of which is appropriately is more classified that front [626(b) sections both the above-noted “legal relief' under section 626. See Maxfield 633a(b) Id. authorize reinstatement." ] Int'l, (3d Cir.1985), v. Sinclair denied, cert. 474 U.S. judged imprac to be 10. Reinstatement has been (1986); Fite v. First Tennessee Prod. L.Ed.2d 773 inadequate where there is discord and ticable Ass'n, (6th Cir.1988); Credit Goldstein, antagonism parties, between

Case Details

Case Name: John H. Lewis v. Federal Prison Industries, Inc., a Corporation Chartered Under the Laws of the United States

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Feb 18, 1992

Citation: 953 F.2d 1277

Docket Number: 88-3570, 88-3774

Court Abbreviation: 11th Cir.