Wendi Ferguson Sellers v. Norman Y. Mineta, Secretary of Transportation

Halderman, hurst U.S. S.Ct. v. (1984). Analysis of 79 L.Ed.2d 67 Tinklenberg proper was a defen

whether extraneous, given

dant be would court’s that the district dismissal

conclude all against

of all Defendants on claims was correct. See In re

summary judgment 634, 642,

Snyder, 105 S.Ct. 472 U.S. (“We (1985) avoid constitu

86 L.Ed.2d of such

tional when resolution issues issues case.”). necessary disposition of

is not

III. CONCLUSION above, the

For reasons stated deci-

sion district court is AFFIRMED. Ferguson SELLERS, Appellee,

Wendi MINETA, Secretary Y.

Norman

Transportation, Appellant. See also 350 706. 02-1425.

No. Appeals, States Court of

United Circuit.

Eighth April 2003.

Submitted:

Filed: Feb. Scarborough, argued,

Charles W. Wash- DC, ington, for appellant. Rich, Louis, A.

Gregory argued, St. MO (Jerome Dobson, brief), ap- J. on the pellee. LOKEN,

Before Judge, Chief HANSEN BYE, Judges. Circuit HANSEN, Judge. Circuit brought an against Wendi Sellers action Secretary of Transportation pursuant Rights to Title Act VII Civil seq. et 2000e, (2000), § alleging U.S.C. unlawfully she was discriminated in against on account of gender filing retaliation for harassment complaint. sexual Pursuant to 636(c), § parties’ con- U.S.C. sent, a magis- the claims were tried before judge jury. jury trate and a After the Sellers, returned a verdict in favor of she equitable moved for relief in the form of or, alternative, pay. The district court denied reinstate- in the ment but awarded Sellers $638,293.99. government amount of appeals the front award. For below, reasons stated we vacate the award to the court. and remand I. employed

Sellers was the Federal (FAA) Ar Aviation Administration as an Mr- Specialist Traffic Control at Lambert port beginning Louis St. 1987. Sell- subjected alleged ers that she was ly regarding information Sellers’ beginning received work environment hostile through the time of her from Bank of America that “if lasting discharge in 1997. The harassment be- termination impact would have a direct on the proved, who was also em- gan Joseph, when John relief], motion de- plaintiffs [for Lambert, made unwanted sexual ployed at ability fendant’s to even consider reinstate- and, on one occa- advances toward Sellers ... ultimately, ment therefore on the sion, at sexually assaulted Sellers her pay.” (Appellee’s App. of front issue of complained this home. Sellers 24-25.) 19, 2001, the court On November coworkers, supervisors, and union to her hearing held a on the reinstatement/front Joseph’s harassing Although officials. The district court concluded pay motion. complaints, after Sellers’ conduct ceased impractical reinstatement was be- at Lambert de- workplace atmosphere the acrimony present cause of the level of still subjected to as on- teriorated Sellers coworkers, super- between Sellers and her of the dete- the-job harassment. Because visors, the FAA. In lieu of reinstate- FAA decided to riorating atmosphere, the ment, the district court awarded Sellers 30, September effective terminate Sellers Secretary ar- pay. appeal, On the that the court its dis- gues abused 2000, through April From October awarding cretion in Sellers front be- worked at the Bank of America. Sellers is, post-termination conduct-that cause 14, April The terminated Sellers on bank termination from Bank of America attempted process after she a loan processing application- false in application unauthorized loan the name as made her unsuitable former wife. spouse’s of her When bank Secretary air traffic The controller. representatives questioned Sellers about argues in the alternative that the front application, the loan she admitted her award was excessive under the circum- conduct, explaining that she had wrongful stances. to obtain her completed application history. spouse’s ex-wife’s credit II. during case was tried March Sellers’ primary presented The issue is whether employed by she was still when a misconduct of dis- $800,000 jury awarded bank. The Sellers charged employee prevent that would rein- compensatory damages in noneconomic defendanVprior statement with the em- $345,000 backpay. April On ployer equitable remedy limits the of front judgment court entered the district pay. question impression It of first jury’s verdict and accord with then this circuit. Secretary’s motion for remitti- granted the

tur, reducing Sellers’ noneconomic dam- After-Acquired A. Waiver of Evidence statutory maximum ages award to the Theory 1981a(b)(3)(D) See U.S.C. $300,000. § Initially, reject argu Sellers’ (2000). granted The district court also Secretary ment that the waived this issue prejudgment Sellers’ motion for interest by it the district failing raise before $27,329.33. sought the amount of after-acquired court. Even if the evidence equitable further relief the form of rein- theory by Secretary advanced is an 25, 2000, pay. April statement or front On pleaded, affirmative defense that must be Secretary stay moved for a of the Sellers, clearly claimed the Secre proceedings with respect requested relief, noting tary expected that he cannot be to raise the de- had recent- (ADEA). Act years Employment filed over two in an answer fense to the de giving rise during plaintiffs deposition to the events learned prior Further, filed Mo fense. employed plaintiff that while the was still days Stay Proceedings within tion For firm, copied with the she had and taken events, court alerting the learning home certain confidential documents in vi wrongdo investigating alleged that was job responsibilities. olation of her See id. termination the basis for Sellers’ ing as 115 S.Ct. 879. The McKennon noting Bank America and that the after-acquired held that evidence of Court impact a direct events would have misconduct, on-the-job employee which A pay. and front of reinstatement issues in that employee’s would have resulted portion of the November significant it, discharge employer had the known of testimony about hearing was devoted recovery preclude did not under the surrounding termi the events Sellers’ 356, The ADEA. See id. at 115 S.Ct. 879. the bank and how those events nation from however, rejected proposition, Court the of rein affected the FAA’s consideration employee’s that “the own misconduct is (See at Appellant’s App. stating Sellers. to all the remedies otherwise irrelevant 225-26.) 189-93, 211-14, 46-47, The dis the at 360- available under statute.” Id. found that Sellers specifically trict court 61, explained 115 S.Ct. 879. The Court for the mis terminated from the bank employee’s wrongdoing that “the becomes That misconduct formed ba conduct. ... relevant to take due account of the not to offer for the FAA’s decision sis prerogatives employer lawful in the (D. April in 2001. of its business and the corre usual course 6.) circumstances, these Ct. Order sponding equities arising has not cite the although the did 361, employee’s wrongdoing.” Id. at court, theory to the district specific legal 115 Most relevant to our dis S.Ct. 879. sufficiently raised the conclude that he cussion, that: Court concluded allow us before the district court to issue of remedial relief appeal. proper it on See Sexton The boundaries to consider (8th Martin, where, 914 n. 8 Cir. 210 F.3d after general in the class cases 2000) facts were al (reaching issue where termination, it is discovered the em- though control leged in district court brief wrongdoing in must ployee engaged has not); Live ling authority was Stockmen’s in judicial system be addressed Market, Bank Inc. v. Nonvest stock decisions, ordinary course of further N.A., 1236, 1243 n. 4 City, Sioux eq- permutations factual and for the (8th Cir.1998) (reaching encompassed issue will they raise uitable considerations general argument in made before district to case. do conclude vary from case We advancing argument did party court where here, general rule cases and as appeal on present new evidence nor neither reinstatement type, of this appeal). on parties briefed the issue both remedy. It appropriate is inequitable pointless would be both Evidence After-Acquired B. Merits of the reinstatement of someone to order Theory terminated, employer would have Supreme Court ease The most relevant terminate, any event and and will Publ’g Banner is McKennon v. Nashville upon grounds. lawful Co., 115 S.Ct. U.S. 361-62, 115 Id. at S.Ct. (1995). There, plaintiff L.Ed.2d 852 involved the Although McKennon terminated her alleged that her in the ADEA, reasoning applies also its Discrimination Age in violation of the employee’s occurring Title context. See id. S.Ct. VII (“The substantive, antidiscrimination Id. at during employment.” 682-83. upon are modeled provisions of the ADEA bright- court Sigmon applied then VII.”); Trans prohibitions of Title rule, concluding line that because the mis- Thurston, Airlines, Inc. v. 469 U.S. World conduct occurred outside the 111, 121, 105 S.Ct. 83 L.Ed.2d 523 relationship, complaint the defen- (1985) similarity (recognizing the between may dant have had fell outside the McKen- ADEA “the Title VII and the because (“Because case, non rule. See id. this the ADEA were provisions substantive plaintiffs alleged misconduct occurred af- (in derived haec verba from Title VII” termination, ter her McKennon does not omitted)). Only a few courts ternal marks situation, govern.... In the instant defen- question have addressed the of whether plaintiff in an employer- dant were not the McKennon rationale should be extend át employee relationship the time of the question ed to answer the whether evi alleged any complaint incident. Therefore dence of misconduct that occurred after against plaintiff defendant has terminated, but employee has been post-employment conduct falls outside of made, before the front decision is ”). the McKennon rule.... fashioning equitable relevant in relief. Woodbury County In Carr v. Det. Juv. Ryder Westinghouse Corp., Elec. (N.D.Iowa Ctr., 1995), F.Supp. 905 619 the (W.D.Pa.1995), F.Supp. 879 534 the constructively plaintiff discharged was question nega court answered this the employment youth from her as a worker after-acquired tive. It reasoned that the racially sexually of a result and hostile “presupposes evidence doctrine that there plaintiff work environment. The filed a employer-employee relationship was an at motion in limine to exclude evidence of her the time the misconduct occurred” and marijuana post-employment use that the that “there cannot be misconduct that the employer during prepara- discovered trial prior to mak employer did not know about argued tion. The defendant that Carr’s if ing its adverse decision the misconduct marijuana post-termination proba- use was did not even occur until after the adverse (1) it damages tive because showed that at 537. In Sig decision was made.” Id. County the would have fired Carr because Parker Chapin Klimpl, mon v. Flattau & marijuana County employ- use violated (S.D.N.Y.1995), F.Supp. plain 901 667 the (2) ment it policies and because showed position tiff was terminated from her as an unlikely that Can- was to have remained firm for allegedly associate at a law dis position any length her of time as it criminatory reasons after she returned unlikely person marijua- that a with a maternity After her termi leave. long na could have maintained term habit nation, provided the firm her with an office employment. granted The district court job telephone and to conduct a search. motion, evidence, the excluded the and de- time, During this the her plaintiff copied clined to extend McKennon. Like the personnel personnel file as the files well as cases, aforementioned court rea- Carr twenty other associates. The defendant that presupposes soned McKennon argued plaintiff that even if the could wrongdoing occurred during exis- discrimination, damages prove employment relationship. tence of the See misappropriation, be limited due to her id. at The court also 627-28. reasoned copying, and retention of the defendant’s apply that McKennon should not because rejected documents. The district court “marijuana court, simply nothing use had argument. Ryder Like the did not em- “premised during concluded McKennon was do occur sweeping language, former McKennon Court used and caused her ployment Id. at 628-29. absolutely instructing no detriment.” lower courts to treat each case Third, that the court reasoned the district on a case case basis all considering not County’s employment policies could permutations “factual imposed upon person ... be “properly McKennon, they considerations raise.” or her has terminat- after his 879; 513 U.S. at S.Ct. see also inequi- grossly would be “[i]t ed” because Co., Harleysville Mardell v. Ins. Life plaintiff] to all of the [a table hold (3d Cir.1995) 1074 n. 4 (stating County policies at a time when burdens limit “Supreme Court did not receiving any of the benefits she is principles articulated McKen- general Finally, County employment.” Id. on-the-job involving non to cases miscon- if the district court concluded even duct, using instead the broader term County had not applied, McKennon ”). Thus, ‘wrongdoing’ like Tenth Cir- plaintiffs post-termi- established that the cuit, cannot bright-line establish a rule that it would nation conduct was so severe possibility and foreclose the that a Title for it. id.- have terminated her See plaintiffs post-termination conduct VII Tenth has also confronted Circuit circumstances, may, under limit certain Biotech, In Medlock v. this issue. Ortho plain- the remedial relief available to the (10th Cir.), denied, Inc., F.3d 545 cert. simple tiff. A illustration will demonstrate 120 S.Ct. 145 L.Ed.2d 528 U.S. why and how (1999), allegedly terminated Medlock was relevant, circumstances, may be some filing pursuing in retaliation for his limiting suppose relief. Let us that after At his claim of race-based discrimination. her, the FAA had terminated and before unemployment compensation benefits granted court her hearing, verbally Medlock defen abused relief, Sellers had been convicted of some argued that dant’s counsel. The defendant wholly posi- crime unrelated to former in to in refusing the district court erred tion the FAA and was incarcerated jury post-termi that struct the Medlock’s that an im- such reinstatement was now nation conduct could serve to limit dam possibility. Simple common sense tells us recognized that ages. The Tenth Circuit inequitable that it would be to award her could, ap conduct in an post-termination pay in lieu of reinstatement where case, propriate plaintiffs limit a remedies. actually she had rendered herself unable (stating See id. at 555 that it could “not to be reinstated. possibility appropriate foreclose the that logic may circumstances the of McKennon pay remedy The nature of the front permit certain limitations on relief based itself is what makes the answer to the conduct”). post-termination on But it con Front pay above illustration so intuitive. cluded that Medlock was not such a case. remedy may ais disfavored that be award (stating See id. that in “cases in which the reinstatement, ed in lieu of but not in alleged misconduct arises as a direct result it, addition to where the circumstances termination, retaliatory necessary of impractical. make See Sal reinstatement balancing equities hardly mandates 562, Chrysler Corp., itros v. 306 F.3d 572 instruction on after-oc McKennon-type (8th Cir.2002) (stating pay that front is a evidence”). curring Ark. remedy); disfavored Kucia v. S.E. (8th Cmty. Corp., F.3d 949 Action 284 are of the view that the afore

We Cir.2002) (stating gave mentioned district court cases too pay that front is reading crabbed a to McKennon. The should be the norm and 1064 exceptional remedy); permuta- Smith v. World should also be one of the “factual (8th Cir.1994) Co., 1466

Ins. 38 F.3d determining tions” which is relevant (“Front equitable remedy, which pay is pay appropriate. whether a front award is of, may ... be awarded in lieu but not O’Brien, Neylon Christine The Law See reinstatement.”)- The avail- ] addition! Acquired Employment Evidence in After ability pay remedy pre- as a thus Discrimination Cases: Clarification of impractical is supposes that reinstatement Burden, Guidance, Employer’s Remedial impossible due to circumstances Enigma Post-Termination It would be plaintiff. attributable to the Misconduct, U.M.K.C. L.Rev. inequitable plaintiff for a to avail herself of (1996) (concluding post-termi- that where remedy of exceptional the disfavored and egregious, nation misconduct is con- such pre- where her own misconduct reinstatement). duct should bar availing cludes herself of the remedy favored and more traditional McKennon makes clear that such, hold that a reinstatement. As establishing burden of these facts rests plaintiffs post-termination conduct is rele- McKennon, employer. See 513 U.S. at determining vant in whether a front (stating employ 115 S.Ct. 879 362-63, available, so, award and if in determin- wrongdoing er must establish that “the ing extent of the award. severity was of such employee fact would have been terminated on those employee’s that an Our conclusion alone”). grounds can, The court must look to in some cir cumstances, employee’s employer’s limit an remedies employment prac actual wrongful discharge for a is not new one. merely tices and not the standards articu conclud example, previously For we have manuals, employment lated its employee ed that a terminated could for things are often observed in the breach remedy feit under of reinstatement keeping. O’Day but not in the v. See National Labor Relations Act where he Co., Douglas Helicopter McDonnell supervisors post-discharge. threatened his (9th Cir.1996) (stating Inc. Mfg., See Precision Window inquiry must focus on actual (8th N.L.R.B., Cir. practices). government argues that it 1992) (stating employee that “a fired ‘does has showing established the relevant facts right engage not have an unlimited that no longer eligible Sellers is for rein losing misconduct without remedial his statement FAA hiring practices because ” rights’ (quoting Mfg., Precision Window provide that a person who has been termi Inc., (Raudabaugh, N.L.R.B. No. 141 from, nated or resign, position forced to a dissenting))). have also concluded that We is unsuitable for an Air employment as pay would be unavailable where the Specialist. Traffic Control The district plaintiffs post-termination own court concluded that the FAA’s assertion Smith, prevented reinstatement. See that Sellers unsuitable reinstate (stating unreasonably that an post-termination ment because of her con rejected offer of reinstatement will bar duct was evidence of the acrimonious rela pay). requires entitlement to front It no them, tionship between but there is no if an leap logic to conclude that unrea specific finding by the court that FAA rejection sonable offer of reinstate employment regulations policies ap and as award, precludes pay ment a front then plied to Mrs. in fact Sellers do bar her type a post-termination misconduct of employment reinstatement or as an Air employee actually renders an unable to be Traffic ineligible Specialist. reinstated for reinstatement Control There is no regularly that the FAA adheres statement and should be unavailable finding where FAA or that has alleged policy this the plaintiffs prevented own conduct rein- official determination that Sellers Smith, made an 1466; statement. See 38 F.3d at is, fact, for reinstatement unsuitable McKennon, 361-62, see also U.S. post-termination her con- solely because of (“[A]s general 115 S.Ct. 879 a rule cases FAA not to offer duct. That the chose type, of this neither reinstatement nor equate reinstatement does not with Sellers front pay appropriate remedy.”). is an We alone made finding that Sellers’ conduct issue, however, address this in the event ineligible for reinstatement. her the district court determines on re- Accordingly, we vacate the district post-termination' mand that Sellers’ con- of front and remand for pay court’s award duct did not in itself bar her reinstate- findings further of fact and conclusions of ment. on No existing

law to be made record. pay Sellers asked for front in an evidentiary record shall reopening amount compensate sufficient to her for occur, course, may, but the court its the difference between her then-current briefing call for additional discretion $24,889 salary of and her FAA salary of remand, argument. On in order to estab- $106,285 at least until her mandatory re pay remedy lish Sellers’ age period years. tirement of 19 by post-termination limited her con- be The district court awarded Sellers front duct, the defendant must convince the pay period for the 20-month between the by preponderance court the evidence time of the verdict and the time of the that Sellers’ conduct ren- ruling on the front pay motion based on ineligible for reinstatement under ders her between actually difference what she employment poli- regulations, the FAA’s earned what she would have earned cies, employment practices.1 and actual employed by had she remained the FAA.

III. request It found until pay Sellers’ retirement “too uncertain” and awarded Pay A. Front Length of Period years pay her an additional seven of front argues also that even if difference cur based on the between her award, was entitled to a front salary an office and the manager rent the award as made was excessive because salary oppor FAA “to afford [Sellers] mitigate damages Sellers failed to tunity compa to obtain job seeking comparable following compensation responsibilities.” rable termination. If the district court deter- (D. 14.) Ct. Order at conduct did mines remand Sellers’ declining to award Sellers front ineligible in fact render her for reinstate- age, until reached retirement the dis- ment, she this issue need not be addressed. factors, pay remedy Front is an alternative to rein- trict court considered a number of proper query employer legitimate 1. The is whether the FAA would that advanced as Sellers, justification it would termination. does have reinstated not whether FAA Although rely Sellers' have terminated her. McKennon not termination, employer prove justification required to “the for her nor could years wrongdoing severity the em- it occurred two after the was of such as the conduct Rather, ployee in fact would have been terminated on termination. the FAA relies on it grounds solely alone if the had to avoid the remedies of rein- those discharge,” pay, thereby shifting it at 513 statement or front known of the time of 362-63, inquiry Sellers would have been U.S. at 115 S.Ct that case in- to whether on-the-job pre-termination volved reinstated. 1066 contractors, (37), relatively young private including her aviation

including age her in the experience extensive education and jobs such as law airline enforce- and/or field, minimal her efforts aeronautical consultant, dispatcher, pri- ment or with mitigation, and the status of aeronauti towers, air traffic vate control [Sellers] industry. cal Because we believe Instead, sought employment. no such out eight years eight and months2 is the sought relatively paying [Sellers] low appropriate pay side limit of an front jobs, great majori- and the nature of the education, given age, award Sellers’ jobs ty applied for which [Sellers] (without experience considering extensive way in no related to the field of aviation. any mitigation attempts), minimal we can (D. 5.) To say Ct. Order avoid reduction length not the district an award, court’s ultimate award was abuse pay duty her front Sellers had a to discretion, especially when it considered mitigate damages by seeking compara her Salitros, relevant factors. See employment. ble See Denesha v. Farmers (affirming seven-year F.3d at 570 front (8th Exch., Ins. 161 F.3d Cir. plaintiffs normal pay award until retire 1998). While the district court found that age); Paperworkers ment Int'l United Un adequately attempt mitigate she did not ion, AFL-CIO, Champion Local damages, sufficiently failed to reflect (8th Cir.1996) Corp., Int’l 81 F.3d (affirming her failure its award. See id. 24-year that a (expressing “grave doubt” pay plain reduction in front award where upheld pay award could be stat tiff failed to mini “make some sustained ing that warranting “[i]nstead of lifetime attempt comparable employ mal to obtain relatively pay, young age of front Fiedler’s ment”). The district court’s award at a improve opportunities his future differential between the actual FAA mitigate through employment”); other adequately salaries does not account for Hukkanen v. Int'l Operating Union of mitigate. her failure to As relevant on Eng’rs, Hoisting & Portable Local No. remand, the district court should deter (8th Cir.1993) (affirm an mine amount that Sellers could have ing years). award of ten attempted compa

earned if she had to find Pay B. Dollar Amount of Front Award work, rable and reduce accord award (“[A]n ingly. equal See id. amount believe, however, that We the dis what Denesha would have earned if he had trict court not did abuse its discretion reducing mitigation the annual amount it used to made reasonable efforts was award.”). calculate Sellers’ award to reflect Sellers’ properly subtracted his mitigate. Following failure to ter Sellers’

mination, she worked as a loan officer and IV. manager, paid office both of which The district court’s award of $25,000. salary annual of approximately vacated, and the case is remanded to the specifically The district court found: proceedings district court for further Although experience air traffic [Sellers’] qualify opinion. would with inconsistent this years pay beyond judgment. en 2. The refers to tire front award The factors seven-year actually by fashioning aas award. Sellers re- used the district court in eight-year eight-month seven-year apply equally peri- ceived an award to both ods, pay period pay and our award: the 20-month between references judgment, periods. verdict and and the additional award refer to both sev-

1067 Rather, LOKEN, concurring. ica the court Judge, misconduct. conclud Circuit impracticable ed that reinstatement “is I the court. write join opinion I because the ex circumstances” FAA issue to address additional separately continuing a pressed disposi “unfavorable on remand. proceedings to the relevant “hostility” tion” and toward Sellers’s re observes, record Judge Bye in “the dissent 13, employment. Mem. & Order of Dec. imprac- was shows Sellers’s reinstatement 2001, conclusion, p.9. at For this the court (i.e., the tical due to other circumstances our R cited decision Cowan v. Strafford have faced environment she would hostile (8th Dist., 1153, VI School 140 F.3d 1160 who still em- working Cir.1998). Cowan, But in reinstatement sexually man harassed ployed the who would have reunited terminated teacher her).” Judge Bye at 1072. If means Ante antagonist, principal, with her at school poten- reinstatement is not suggest Thus, facility. “hostility” the same remand, disagree. I In tially an issue comparable issue Cowan to the was view, my the issue of reinstatement will be question whether Sellers should rein be very much alive the FAA fails to estab- if at Airport Joseph stated Lambert lish that miscon- Sellers’s co-workers, antagonistic equita and other ineligible duct made her for reinstatement. Cowan, ble relief Sellers did not seek. post-verdict equita- motion for Sellers’s Standley as in our earlier decision in preferred properly sought relief ble Dist., Sch. 5 322 Chilhowee R-IV F.3d remedy and included an of reinstatement (8th Cir.1993), unwilling were order if request for front rein- alternative reinstatement would threaten the impractical. was Because Jo- statement proper functioning by of a school re-estab Lambert seph employed continued to be lishing admittedly day-to-day hostile work Airport, requested ing relationships between a teacher and facility, specifying FAA three at another (Cowan), a num principal or between that would be convenient suitable (Standley). ber of teachers Thus, Judge Bye is correct her. while court acknowledged continued to be an FAA em- As the district earli Joseph order, request- er in its memorandum and Corvan ployee, the reinstatement Sellers Standley “presented extraordinary not have her to work at required ed would facility Joseph employed, where was which warrant denial of re circumstances other staff and where her relations with 140 F.3d at 1160. On the instatement.” significantly prior hand, had deteriorated to her “hostility engendered from liti other response opposed The FAAs termination. gation” extraordinary is not and does not agen- relief and advised that the preferred remedy. Taylor this v. Tel bar Cir.1981), (8th cy considering feasibility was of rein- F.2d etype Corp., 648 ter- learning statement. After of Sellers’s denied, 969, 102 rt. 454 U.S. S.Ct. ce America, FAA mination Bank of (1981); 515, 70 L.Ed.2d 386 accord Dicker April decided in 2001 not to reinstate her Printers, Inc., Deluxe son v. Check argued to the district court that she Cir.1983). (8th Therefore, air ineligible for reinstatement as an “[sjubstantial only hostility, above traffic controller because of “misconduct normally litigation, incident to sound resulted in her termination which denying basis for reinstatement.” United Mem. & Order of America].” [Bank Champion Int’l Union v. Paperworkers 13, 2001, p.6. Dec. (8th Cir.1996), Corp., Int’l reinstatement, v. Northland Coun quoted in Hammond The district court denied (8th Ctr., seling Bank Amer- Inc. 218 F.3d but not because of Sellers’s BYE, Cir.2000). Judge, dissenting. court never Circuit Yet the district whether, assuming was analyzed Sellers majority opinion in disagree I with the despite her ter- for reinstatement eligible First, Secretary failed respects. two the America, the FAA by Bank of mination post- argue to in the district court ' to opposition its rein- demonstrated precludes misconduct termination than the lin- anything more statement was and therefore waived pay, award of-front hostility normally incident ill-will or gering Second, if appeal. claim now raised on the litigation. type to this of Title VII issue, to reach the I do not be- we were developed by the record the Secre- lieve circumstances, district In these tary establishes Sellers’s i-einstatement explore, must first court on remand impossible due to her impractical or opinion, this court’s accordance with estab- misconduct. Because the record conduct whether Sellers’s only imprac- that reinstatement was lishes ineligible for reinstatement. renders not áttributable tical due to circumstances proof FAA burden of on If the meets its Sellers, to to I believe she is still entitled issue, neither reinstate- presumably I to remand pay, front see no reason appropriate will be pay ment nor front reasons, I respectfully case. For both this hand, if relief. On the other equitable dissent. issue, I then think prevails Sellers on this court should next revisit I the district reinstatement, bearing in mind issue of Secretary’s arguments the dis- may of time soften the passage that “the regarding post-termi- trict court Sellers’s relationships,” United most acrimonious misconduct, as well as his factual nation and deter- Paperworkers, 81 F.3d record, all to development related are terms of rein- mining whether there pi-actical possible it was to whether reasonably comparable to those statement air traffic control- reinstate Sellers as an impracti- that are not proposed any argu- from the record is ler. Absent hostility above that cál because of either post-termination misconduct ment Sellers’s normally litigation to or other suf- incident preclude pay as well. The should regard, parties following respect ficient reasons. this record shows the that reinstatement is the misconduct issue. must remember Therefore, equitable remedy. preferred First, informing- the initial motion VII, FAA, having Title must violated post-termi- court about Sellers’s district strong have reasons to avoid reinstate- on reinstate- nation focused ment, may not hex- and Sellers abandon pay. than ante at ment rather See accept willingness former 24-25). (quoting Appellee’s App. might prefer she now substan- because involving mis- proceedings As the Sellers’s If the court pay tial front award. unfolded, Secretary remained equitable appro- relief is determines that reinstatement, pay. on not front focused despite the Bank of America termi- priate 1, 2000, in example, May response For nation, impracti- and that reinstatement motion for relief Sellers’s standards, rigorous interest, cal under these prejudgment stated question court then return to the possibility exploring “defendant is still including issues of the pay, feasibility reinstating plaintiff. or even respect pay, amount of front dis- to front it is defendant’s length and dollar With is not to front position plaintiff entitled opinion. cussed the court’s 1069 Nevertheless, Appellant’s Secretary argues he the facts this case.” under not, response preserved by The did how- App. presenting at 24-25. the issue factual ever, not be why front would explain evidence on misconduct and Sellers’s if not reinstated. Sellers was generally pay. warranted front I opposing respect- fully disagree. Secretary gave The never 12, 2001, the district entered On March suspect the district court reason to a legal motion hearing for a on Sellers’s an order connection between those facts and the relief “at which time [the pay. after-acquired issue of front The evi- evidence prepare present shall to parties] “requires dence doctrine factual as well as support respec- of their argument legal development!].” EEOC v. Farmer (District tive Id. at 18 Court positions.” (9th Cir.1994). Co., 891, added). Bros. 901 144) Entry # (emphasis Docket That particularly observation is true here hearing was not held until November interim, because the state of the law at the time Secretary decidedly against Secretary was on arguing misconduct never filed brief whether pay. after-acquired an of front evidence doc- preclude should award applied occurring trine to conduct after an 19, 2001, hearing At the November employee’s termination. See Carr v. his represented Sellers’s counsel Ctr., Woodbury County Juvenile Det. 905 understanding opposes that Defendant (N.D.Iowa 1995) (declin- F.Supp. 629 or request part, the reinstatement ing to extend McKennon to misconduct whole, an inci- perhaps result of employment that occurred after the rela- in the dent that occurred which resulted tionship ended); Sigmon v. Parker had cessation of Ms. Sellers’ Chapin Klimpl, F.Supp. Flattau & 901 employ- Bank of That America. (S.D.N.Y.1995) (same); Ryder 682 after the ment ceased about two weeks Westinghouse Corp., F.Supp. Elec. jury Apparently, verdict in this case. (W.D.Pa.1995) (same); but see of ethi- alleges the Defendant some kind Biotech, Inc., Medlock v. Ortho transgression part cal moral on the of or (10th Cir.1999) (stating the Plaintiff. permit certain limitations may ‘McKennon Secretary’s response Id. at 46. The post-termination on relief based on con- that statement was limited to the issue duct.”). suggested and never Secretary a factual developed While the precluded Bank of America incident may arguably record that have been broad Indeed, pay as well. Id. at 47. when the enough encompass after-acquired an ev- Secretary presented evidence at the hear- imprac- idence defense as it related to the ing, his focus was still on the issue reinstatement, ticability reinstatement, impossibility or pay. not front certainly developed legal he never or Finally, hearing, at the end argument factual that the doctrine should specifically district court asked both coun- Thus, preclude pay. an award of front “anything there was else” the sel whether no to decide opportunity district court had clearly open- court needed to address — court, is, the issue now before this ing Secretary legal for the to make a or after-acquired evidence doc- whether the argument regarding pay— factual plaintiffs right trine should affect a “No, Secretary’s replied, and the counsel impracti- is when reinstatement your honor.” Not once did the Secretary’s cable. The waiver this issue cite McKennon other cases discuss- examining the district apparent when ing whether The dis- court’s memorandum and order. preclude pay. award of front case, In a trict court the misconduct exten- Title YII the relevant consider discussed sively in the of the memorandum ation for whether a plaintiff section successful reinstatement, never addressing but men- should be reinstated is whether reinstate in the section ad- tioned the misconduct practicable possible. E.g., ment is or Sal Secretary dressing pay. front Because the Chrysler Corp., itros v. pre- argued (8th Cir.2002).

never the misconduct This consideration differs pay, the court never clude terminating considerations for the considered the issue. already employee position. who holds a might impractical Misconduct that it make analogous

This case is to Farmer Bros. may not to reinstate suffice to show an There, attempted the defendant to im- employer would have terminated. peach plaintiff by introducing the facts making any about her misconduct without Thus, Secretary the would have had to legal argument pre- the misconduct should markedly present different evidence to clude an award of front under the satisfy the McKennon standard. after-acquired evidence doctrine. 31 F.3d employment of air traffic controllers is at The Ninth Circuit concluded the 7513(a), § governed by 5 U.S.C. which properly defendant “failed to raise the af- provides agency may “an take an action ter-acquired evidence defense.” Id. Simi- subchapter covered the in- [which larly, Secretary here the introduced facts against cludes an employee only removal] misconduct, only about Sellers’s but did so such promote for cause as will the effi- impracticability to show the of reinstate- ciency Furthermore, of the service.” Secretary argued ment. The never the “employee against whom an tak- action is an' preclude misconduct should award of en appeal under this section is entitled to pay. System to the Merit Protection Board developed by The factual record the Sec- 7513(d). §at Id. [MSPB].” retary hearing at the further indicates he To assess the reasonableness of feder McKennon, waived the front issue. agency’s employee al termination of an “[wjhere Supreme Court held an em- governed by § the MSPB considers ployer rely upon after-acquired seeks to factors, Douglas pursuant so called wrongdoing, evidence must first es- Douglas the MSPB’s decision in v. Veter wrongdoing tablish that was of such Admin., ans 5 MSPB 5 M.S.P.R. severity employee that the in fact would (1981). See, e.g., 305-06 Grimes v. United grounds have been terminated on those Serv., F.Supp. States Postal 677- alone if the had known of it at (W.D.Mo.1994). discharge.” the time of the U.S. Douglas The twelve factors are: 362-63, majority 115 S.Ct. 879. While the (1) The nature and of the seriousness now differently states the test somewhat (see offense, 1), employ- and its relation to the ante at 1065 & n. McKennon would duties, required Secretary position, responsibilities, have he ee’s show would have terminated for her including mis- whether the inten- offense was order to make an inadvertent, award of tional or technical or or was pay inappropriate. maliciously or gain, committed repeated; frequently was

Here, Secretary present any did not (2) job employee’s type level and showing evidence he would have terminat- employment, fi- Instead, including supervisory or ed Sellers for her misconduct. role, Secretary duciary public, contacts only presented evidence showing prominence position; he would not reinstate Sellers. if termination rath-

(3) rec- the issue Sellers’s past disciplinary employee’s ord; Finally, the er than her reinstatement. record, in- did not ask witness whether (4) past work employee’s service, performance the FAA have terminated Sellers length of would cluding along with job, ability get type on the of misconduct she committed workers, dependability; America, fellow Bank had she still been (5) upon the of the offense the FAA at the time of the working the effect at a satis- ability perform sum, to employee’s only not did the misconduct. Sec- supervi- upon its effect factory level and argument re- retary legal fail to make ability employee’s confidence the sors’ develop garding pay, he also failed to duties; perform assigned to necessary of factual record to type the (6) with those consistency penalty of the standard. satisfy McKennon’s employees for the upon other imposed legal arguments raised for We consider offenses; or similar same only they when appeal the first time on (7) any with consistency penalty of the factual require development, no additional penalties; of applicable agency table injustice or manifest would result. Orr (8) or its notoriety of the offense the Stores, Inc., 720, 725 Wal-Mart agen- upon reputation the impact (8th Cir.2002). Secretary The would have cy; develop the factual record much had to (9) employee the clarity with which assert, and extensively preserve, more to that were any rules was on notice in the after-acquired evidence defense offense, or committing violated district court. Given the uncertain state about the conduct had been warned on the issue whether the doctrine the law question; misconduct, post-termination to extended (10) reha- employee’s for the potential argu- Secretary legal made the had bilitation; waived, I cannot conclude the ment he (11) circumstances surround- mitigating to award front district court’s decision job unusual ten- ing the offense such as Therefore, injustice. in manifest resulted im- sions, mental personality problems, address the I not believe we should do faith, harassment, or bad pairment, Secretary’s argument belated about malice, part on the provocation or pay. matter; and involved in the others (12) and effectiveness adequacy II con- to deter such alternative sanctions Second, the ma- may agree I while employees or in the future duct to to extend McKennon jority’s decision others. thought if I misconduct n. 7. Id. at 678 issue, Kucia v. reach the see we should Secretary did not ask Significantly, the Corp., 284 Cmty. Ark. Action Southeast factors, Douglas to discuss the any witness Cir.2002) (8th (“Equitable have had to take the FAA would which pay] and front [of remedies if the terminating Sellers into account depend forward-looking. They should are review. was to survive MSPB termination existing time of facts on the state to Secretary ask witness Nor did the denied.”), remedy granted is either es- explain how Sellers’s would Secretary presented I do not believe as would cause for termination tablish prove his failure evidence sufficient un- efficiency of the service” “promote the to her was attributable standard reinstate § the relevant der 5 U.S.C. Instead, April meeting. I believe the record vided her at the misconduct. She imprac- shows Sellers’s reinstatement acknowledged give she did not Sellers an (i.e., the tical due to other circumstances opportunity explain her version of the hostile environment she would have faced incident, and she was “a little rushed for still working for an who em- time, in get terms of needed to back to sexually ployed the man who harassed the court to make a decision on reinstate- her). result, post-termi- I believe As ment, I accepted attorneys what the preclude nation misconduct should presented at meeting.” App. at 236.3 award of front in this case. also called Patricia Hea- At hearing, Sellers introduced the ley, a Personnel Services Branch Manager Poole, testimony of James a former vice Management the Human Resources Di- president of Re- the FAA’s Great Lakes Healey vision. proce- testified about the gion. regarding eighteen Poole testified dures the FAA to make hiring uses deci- cases in air traffic represented which he sions, “suitability which involve the use of by controllers who had been terminated grids” grade that types various of miscon- sought the FAA and who B, C, categories A, duct into four D. — through grievance and arbitration pro- Healey testified the Bank of America inci- eighteen cedure. Each of the cases in- violation, dent D would be considered a equally volved misconduct as serious or “[mjajor: which is defined as conduct or more serious than the misconduct Sellers which, alone, issue standing would be dis- (e.g., committed at Bank of America crimi- qualifying, suitability, any posi- under child, nal sexual misconduct with a embez- App. Healey tion.” at 300. zlement, fraud, explained the problems, alcohol insubor- dination, substances, battery, Bank of America illegal use of incident would fall under pornography, bribery, child harassment of table dishonesty. App. issues related to jurors). explained many Poole of the at 250-51. The D category of table 5 by cases resolved a agree- were settlement provides:

ment, FAA reinstating with the the con- dishonesty Pattern of as reflected trollers involved. disregard ! for truth Woods,

The Secretary called Maureen Airway Facility Manager Division ! convictions records Region. the FAA’s Great Lakes At a ! abuse of trust meeting April held in Woods decided employment ! records voluntarily the FAA would not reinstate position as an air traffic blackmail; Sellers extortion; counterfeiting; explained controller. Woods her decision armed; robbery, intentional false state- solely was made because of the Bank of deception ment or or fraud in examina- America incident. Woods described the tion appointment.

issue as one of trustworthiness. On cross- App. at 304. examination, however, acknowl- Woods Healey explained single her belief that a

edged she had not reviewed docu- satisfy incident could the criteria of a cate- regarding ments the Bank of America inci- violation, dent, Dgory though even a D violation instead based the decision on attorneys oral information the FAA pro- required “pattern” a of misconduct: hearing April on the testified she was "rushed” in 2001 to reinstatemenl/front scheduled for June originally issues was 2001, amake decision on reinstatement. may and this be the reason Woods employment on account of you employment ous indicate to Q. pattern aDoes by instances FAA to multiple are are determined there conduct? Air a[n] be ‘unsuitable’ . No, necessarily. not The record Specialist.” A. Traffic Control Secretary clearly developed by one incident does Q. you Do believe Rather, there finding only in a could result that. the record prove pattern? a misconduct, was types of those shows certain forgery, violations, it was A. Because of D render a candi- classified as if that is indeed what forgery, act employment. unsuitable for date an abuse of but it’s also happened, Furthermore, clearly shows the record So, there is a position. trust for the D did not commit a violation. Sell- Sellers individual dishonesty in the pattern a act of misconduct single ers committed on those facts. based single A incident at Bank of America. App. at 257. a logically “pattern” cannot constitute only that it Healey testified Ultimately, dishonesty. presented The evidence likely” person who committed was “not prove single incident at Bank act committed type “pattern” simply incredi- constitutes accepted as suitable of America would be ble, and no other evidence the record controller. as an air traffic employment for general the district court’s state- supports cross-examination, Hea- App. at 250. On persons that the FAA considers all ment per- the FAA never ley acknowledged misconduct kind on who commit on Sell- suitability determination formed employment. job another “unsuitable” not make she could Healey ers. admitted Thus, cred- to the extent the district- court seeing determination without an official Secretary’s regarding evidence ited the She reiterated the relevant documents. finding suitability grids, clearly erred however, that it “seems opinion, requirements misconduct met the Sellers’s D category fits conduct] [Sellers’s D and rendered category for a violation earlier, I the instances that described as an air traffic controller. her unsuitable person suit- I think I could find this don’t view, findings at 256-57. court’s employment.” App. my In the district able for impossi- regarding impracticability record, the district court on this Based turned bility of Ms. Sellers’s found: hostility of the environ- primarily upon plaintiffs misconduct account On if exposed to reinstat- she would be ment from her termination which resulted sexually ha- had The coworker who ed. America], FAA decided not [Bank employed by was still rassed Sellers employ- FAA plaintiff to to reinstate fact, I primary In to that FAA. addition addition, who have persons In ment. added the merely court believe the district resign to or forced been terminated Secretary had decided secondary fact the account of employment on previous from Sellers, giving misconduct are determined not to reinstate without to “unsuitable” em- by the FAA be to whether the reinstate- thought much Air Traffic Control ployment a[n] actually justified for the ment decision was Specialist. Secretary. by given reasons Add. at 6. Ill view, clearly my In the district court argue sum, Secretary failed who have been finding “persons erred pre- resign previ- or forced to terminated of front before the elude award court, a factual develop failed to misconduct would prove

record Sellers’s

have resulted her termination under standard, and further failed to

McKennon misconduct, alone,

prove standing pre- or front pay.

cluded reinstatement Sell- due to impractical

ers’s reinstatement was her,

circumstances attributable

therefore she was still entitled to an award circumstances,

of front these pay. Under I respect-

I see no need for a remand and

fully dissent. MURPHEY, Jr., K.

Robert

Plaintiff-Appellant, MINNEAPOLIS,

CITY OF

Defendant-Appellee.

No. 02-3824. of Appeals,

United States Court

Eighth Circuit.

Submitted: Nov. 2003.

Filed: Feb.

Case Details

Case Name: Wendi Ferguson Sellers v. Norman Y. Mineta, Secretary of Transportation

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Feb 24, 2004

Citation: 358 F.3d 1058

Docket Number: 02-1425

Court Abbreviation: 8th Cir.