Landgraf v. USI Film Products , 968 F.2d 427 ( 1992 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 91-4485
BARBARA LANDGRAF,
Plaintiff-Appellant,
versus
USI FILM PRODUCTS,
BONAR PACKAGING, INC., and
QUANTUM CHEMICAL CORPORATION,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
(July 30, 1992)
Before GOLDBERG, HIGGINBOTHAM, and DAVIS, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
Barbara Landgraf brought suit against her employer asserting
sexual harassment and retaliation claims under Title VII. After
a bench trial, the district court entered judgment in favor of
the defendants. Although the district court found that sexual
harassment had occurred, it concluded that Landgraf had not been
constructively discharged and therefore was not entitled to any
relief under Title VII. Landgraf asserts on appeal that the
district court clearly erred in finding that she was not
constructively discharged and that the district court erred in
failing to make factual findings on her retaliation claim. She
also argues that she is entitled to nominal damages even if she
is unable to demonstrate a constructive discharge. Finally, she
asserts that the damage and jury trial provisions of the Civil
Rights Act of 1991 should be applied retroactively to her case.
We affirm the district court's judgment in all respects and find
that the Civil Rights Act of 1991 does not apply to this case.
I.
Landgraf worked for USI Film Products in its Tyler, Texas
production plant on the 11:00 p.m. to 7:00 a.m. shift. From
September 1984 to January 1986, she was employed as a materials
handler operating a machine which produced several thousand plastic
bags per shift. While she worked at the plant, fellow employee
John Williams subjected her to what the district court described as
"continuous and repeated inappropriate verbal comments and physical
contact." The district court found that this sexual harassment was
severe enough to make USI a "hostile work environment" for purposes
of Title VII liability. The harassment was made more difficult for
Landgraf because Williams was a union steward and was responsible
for repairing and maintaining the machine Landgraf used in her
work.
Landgraf told her supervisor, Bobby Martin, about Williams'
harassment on several occasions but Martin took no action to
prevent the harassment from continuing. Only when Landgraf
reported the harassment to USI's personnel manager, Sam Forsgard,
was Williams' behavior investigated. By interviewing the other
female employees at the plant, the investigation found that four
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women corroborated Landgraf's reports of Williams engaging in
inappropriate touching and three women reported verbal harassment.
Williams denied the charges, contending that "they are all
lying." Williams was given a written reprimand for his behavior,
but was not suspended, although the written policies of USI list
sexual harassment as an action "requiring suspension or dismissal."
He was technically transferred to another department, however, USI
officials conceded that he would still be in Landgraf's work area
on a regular basis. This transfer was not a form of discipline
against Williams; as soon as Landgraf resigned he was transferred
back to the original department.
The investigation dealt not only with Williams' behavior but
also involved questioning employees about their relationship with
Landgraf. On January 13, 1986, Forsgard, Wilson, and Martin met
with Landgraf. According to Wilson's notes describing the meeting,
Forsgard first told Landgraf that her claim had been investigated
and that USI had taken the action it deemed appropriate. The
meeting then turned to focus on Landgraf's problems in getting
along with her co-workers. She was told that she was very
unpopular and was "among [her] own worst enemies." When Landgraf
asked whether anything was going to happen to Williams she was told
that USI had taken what it considered appropriate action and to
notify them if Williams attempted to take revenge.
After working just two more shifts, Landgraf left her job at
USI. She left a letter addressed to her colleagues stating that
"the stress that each one of you help [sic] to put on me, caused me
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to leave my job." The letter did not refer to the sexual
harassment or to Williams by name. Approximately two days later,
Landgraf spoke to her supervisor about her decision to resign and
specifically attributed it to the harassment by Williams.
II.
It is uncontested that Barbara Landgraf suffered significant
sexual harassment at the hands of John Williams during her
employment with USI. This harassment was sufficiently severe to
support a hostile work environment claim under Title VII. Meritor
Savings Bank, FSB v. Vinson, 106 S. Ct. 2399 (1986). She reported
this harassment to her employer through supervisor Bobby Martin on
several occasions and no corrective action was timely taken.
Because Landgraf voluntarily left her employment at USI,
however, she must demonstrate that she was constructively
discharged in order to recover back pay as damages. In order to
demonstrate constructive discharge, she must prove that "working
conditions would have been so difficult or unpleasant that a
reasonable person in the employee's shoes would have felt compelled
to resign." Bourque v. Powell Electrical Mfg. Co., 617 F.2d 61, 65
(5th Cir. 1980); Jurgens v. EEOC, 903 F.2d 386, 390-91 (5th Cir.
1990). The district court found that the sexual harassment by
Williams was not severe enough that a reasonable person would have
felt compelled to resign. This conclusion was strengthened by the
district court's finding that at the time Landgraf resigned USI was
taking action reasonably calculated to alleviate the harassment.
The district court further found that "as evidenced by the language
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in her resignation letter, Landgraf's motivation for quitting her
employment with USI was the conflicts and unpleasant relationships
she had with her co-workers."
Landgraf argues first that the district court clearly erred in
finding that USI had taken steps reasonably calculated to end the
harassment. We disagree. Our review of the district court's
factual finding is limited. As the Supreme Court has recently
described the scope of our review: "If the district court's
account of the evidence is plausible in light of the record viewed
in its entirety, the court of appeals may not reverse it even
though convinced that had it been sitting as the trier of fact, it
would have weighed the evidence differently." Anderson v. Bessemer
City, 470 U.S. 564, 573-74 (1985). There was evidence that USI had
given Williams its most serious form of reprimand and acted to
reduce his contact with Landgraf at the workplace. Landgraf
testified that Williams continued to harass her after his
reprimand, however, she did not report these incidents to USI
before resigning. Title VII does not require that an employer use
the most serious sanction available to punish an offender,
particularly where, as here, this was the first documented offense
by an individual employee. The district court did not clearly err
in concluding that USI took steps reasonably calculated to end the
harassment.
Landgraf argues that the finding of no constructive discharge
was clearly erroneous. We disagree. The district court, after
hearing all the testimony in this case, concluded that Landgraf
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resigned for reasons unrelated to sexual harassment. The evidence
in this case presented two possible reasons for Landgraf's decision
to resign: problems with her co-workers, as evidenced by her note
or sexual harassment as stated in conversation with Bobby Martin.
Landgraf testified at trial that the sexual harassment was the
reason for her resignation. She also stated that the reference to
"the devil [who] has been your leader so far" in her resignation
note was actually a reference to Williams. The district court
concluded based upon this testimony and the note itself that the
problems with her co-workers actually caused her resignation.
Given these two plausible interpretations of the evidence, we must
affirm the district court's finding. Landgraf also asserts that
the conflicts she had with her co-workers were as a result of her
problems with Williams. There was conflicting evidence on this
question and the district court specifically found that Landgraf's
conflict with her co-workers was unrelated to the sexual harassment
by Williams. The district court did not clearly err in finding
that Landgraf left her employment at USI for reasons unrelated to
sexual harassment.
Moreover, even if the reason for Landgraf's departure was the
harassment by Williams, the district court found that, particularly
in light of the corrective actions taken by USI immediately before
Landgraf resigned, the level of harassment was insufficient to
support a finding of constructive discharge. To prove constructive
discharge, the plaintiff must demonstrate a greater severity or
pervasiveness of harassment than the minimum required to prove a
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hostile working environment. Pittman v. Hattiesburg Municipal
Separate School District, 644 F.2d 1071, 1077 (5th Cir. 1981)
(constructive discharge requires "aggravating factors"). The
harassment here, while substantial, did not rise to the level of
severity necessary for constructive discharge. Although USI's
investigation of this incident may not have been overly sensitive
to Landgraf's state of mind, the company had taken steps to
alleviate the situation and told Landgraf to let them know of any
further problems. A reasonable employee would not have felt
compelled to resign immediately following the institution of
measures which the district court found to be reasonably calculated
to stop the harassment. We cannot say that the district court
clearly erred in rejecting the claim of constructive discharge.
III.
Landgraf asserts that the district court erred in failing to
make findings of fact and conclusions of law with regard to her
retaliation claim against USI. USI argues that no findings on the
retaliation claim are necessary because Landgraf failed to prevail
on her claim of constructive discharge. We agree.
An adverse negative employment action is a required element of
a retaliation claim. Collins v. Baptist Memorial Geriatric Center,
937 F.2d 190, 193 (5th Cir. 1991). The only possible adverse
employment action that Landgraf suffered after she complained to
Martin about the sexual harassment would be the alleged
constructive discharge. Because the district court found that the
reason Landgraf resigned her position was her trouble getting along
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with her co-workers, she cannot prove constructive discharge on the
basis of retaliation. As noted above, Landgraf asserts that her
troubles with her co-workers were as a result of her complaints
about Williams' harassment. However, the district court explicitly
found to the contrary and we cannot say that that finding was
clearly erroneous. Accordingly, Landgraf's retaliation claim
cannot prevail because she suffered no adverse employment action as
a result of her complaints. Collins, 937 F.2d at 193.
IV.
Landgraf argues that even if she fails to demonstrate that she
was constructively discharged, she may still be awarded nominal
damages which would carry with them an award of attorneys' fees.
We recognize that some confusion may have arisen from our statement
in Joshi v. Florida State Univ., 646 F.2d 981, 991 n.3 (5th Cir.
Unit B 1981), indicating in dicta that in some cases an employee
who suffered from illegal discrimination but was ineligible for
back pay might be entitled to nominal damages. Several circuit
courts have explicitly held that such nominal damages are available
under Title VII in some cases. Huddleston v. Roger Dean Chevrolet,
845 F.2d 900, 905 (11th Cir. 1988); Baker v. Weyerhaeuser Co., 903
F.2d 1342 (10th Cir. 1990). See also Katz v. Dole, 709 F.2d 251,
253 n.1 (4th Cir. 1983); T & S Service Associates v. Crenson, 666
F.2d 722, 728 n.8 (1st Cir. 1981). Only the Seventh Circuit has
directly rejected the award of nominal damages as relief in Title
VII cases. Bohen v. City of East Chicago, Indiana, 799 F.2d 1180,
1184 (7th Cir. 1986).
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We conclude that the Bohen court's rejection of nominal
damages as a Title VII remedy is the correct interpretation of the
statutory scheme.1 Title VII provides that where a court finds
that an employer has engaged in unlawful employment practices, it
may order action "which may include, but is not limited to,
reinstatement or hiring of employees, with or without back pay, .
. .or any other equitable relief as the court deems appropriate."
42 U.S.C. § 2000e-5(g). We have consistently interpreted this
provision to mean that "only equitable relief is available under
Title VII." Bennett v. Corroon & Black Corp., 845 F.2d 104, 106
(5th Cir. 1988). Nominal damages such as those awarded in
Huddleston and Baker are legal, not equitable relief and are
therefore outside the scope of remedies available under Title VII.
Bohen, 799 F.2d at 1184 (damages unavailable to redress Title VII
violations that do not result in discharge).
Landgraf also asserts that she is entitled to equitable relief
in the form of a declaratory judgment, relying on the Eighth
Circuit's opinion in Bibbs v. Block, 778 F.2d 1318 (8th Cir. 1985).
We conclude that no declaratory judgment is appropriate in this
case. The purpose of equitable relief under Title VII is "to
restore the victim of discrimination to fruits and status of
employments as if there had been no discrimination." Bennett, 845
F.2d at 106. Here, because Landgraf voluntarily left her
1
We note, of course that under the amendments to Title VII
in the Civil Rights Act of 1991, remedies will no longer be
limited to equitable relief. However, for the reasons discussed
below, those amendments do not apply to this case.
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employment she was not deprived of any fruits of employment as a
result of the sexual harassment. Her argument that she is entitled
to a declaratory judgment for purposes of vindication because she
prevailed on the issue of whether sexual harassment occurred must
also fail. See Laboeuf v. Ramsey, 503 F. Supp. 747 (D. Mass. 1980)
(allowing declaratory judgment for purposes of vindication). USI
did not dispute at trial the fact of Landgraf's sexual harassment.
The only issues disputed were the propriety of USI's reaction to
the harassment and Landgraf's reason for resigning. Landgraf did
not prevail on either of these issues and the district court did
not err in refusing to grant a declaratory judgment.
V.
Finally, we address the question of whether any provisions of
the Civil Rights Act of 1991 apply to this case. Two provisions of
the Act would affect this case if applicable: the addition of
compensatory and punitive damages and the availability of a jury
trial. Civil Rights Act of 1991, Pub. L. No. 102-166, § 102(a)(1),
102(c), 105 Stat. 1072-73 (1991).
We recently addressed the issue of the Act's retroactivity in
Johnson v. Uncle Ben's, Inc., ____ F.2d ____, 1992 WL 147678 (5th
Cir. July 1, 1992), where we joined the other circuit courts which
have ruled on the issue in holding that § 101(2)(b) of the Act does
not apply to conduct occurring before the effective date of the
Act. See Luddington v. Indiana Bell Telephone Co., ___ F.2d ___,
1992 WL 130393 (7th Cir. June 15, 1992); Fray v. Omaha World Herald
Co., 960 F.2d 1370 (8th Cir. 1992); Vogel v. City of Cincinnati,
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959 F.2d 594 (6th Cir. 1992). We need not repeat here our
discussion of the legislative history of the Act. For the reasons
explained in Johnson, we conclude that there is no clear
congressional intent on the general issue of the Act's application
to pending cases. We must therefore turn to the legal principles
applicable to statutes where Congress has remained silent on their
retroactivity.
As we noted in Johnson the legal principles surrounding the
retroactive application of statutes are somewhat uncertain in light
of the Supreme Court's decisions in Bradley v. Richmond School
Board, 416 U.S. 696 (1974) and Bowen v. Georgetown University
Hospital, 109 S. Ct. 468 (1988). We need not resolve the recognized
tension between the Bradley and Bowen cases, however, in order to
resolve the issue facing us here. See Kaiser Aluminum & Chem.
Corp. v. Bonjorno, 494 U.S. 827, 837, 110 S. Ct. 1570, 1572 (1990).
Even under the standard set forth in Bradley we conclude that these
two provisions of the Act should not be applied retroactively to
this case.
The rule set forth in Bradley is that a court must "apply the
law in effect at the time it renders its decision, unless doing so
would result in manifest injustice or there is statutory direction
or legislative history to the contrary." Bradley, 416 U.S. at 711.
In determining whether retroactive application of a statute will
wreak injustice, we consider "(a) the nature and identity of the
parties, (b) the nature of their rights, and (c) the nature of the
impact of the change in law upon those rights." Belser v. St. Paul
11
Fire and Marine Ins. Co., ___ F.2d ___ (5th Cir. July 9, 1992),
citing Bradley, 416 U.S. at 717, 94 S.Ct. at 2019.
We turn first to the provision allowing either party to
request a jury trial. When this case was tried in February 1991,
the district court applied the law in effect at that time when it
conducted a bench trial on the Title VII claims. We are not
persuaded that Congress intended to upset cases which were properly
tried under the law at the time of trial. See Bennett v. New
Jersey, 105 S. Ct. 1555 (1985) (Court would not presume that
Congress intended new grant regulations to govern review of prior
grants). To require USI to retry this case because of a statutory
change enacted after the trial was completed would be an injustice
and a waste of judicial resources. We apply procedural rules to
pending cases, but we do not invalidate procedures followed before
the new rule was adopted. Belser, ___ F.2d ___ at _____.
We now turn to whether the Act's provisions for compensatory
and punitive damages apply to pending cases. We conclude that they
do not. Retroactive application of this provision to conduct
occurring before the Act would result in a manifest injustice. The
addition of compensatory and punitive damages to the remedies
available to a prevailing Title VII plaintiff does not change the
scope of the statute's coverage. That does not mean, however, that
these are inconsequential changes in the Act. As Judge Posner
notes in Luddington, "such changes can have as profound an impact
on behavior outside the courtroom as avowedly substantive changes."
Unlike allowing prevailing plaintiffs to recover attorneys' fees as
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in Bradley, the amended damage provisions of the Act are a
seachange in employer liability for Title VII violations. For
large employers, the total of compensatory and punitive damage
which they are potentially liable can reach $300,000 per claim.
Civil Rights Act of 1991, § 102(3)(b)(3).
The measure of manifest injustice under Bradley is not
controlled by formal labels of substantive or remedial changes.
Instead, we focus on the practical effects the amendments have upon
the settled expectations of the parties. There is a practical
point at which a dramatic change in the remedial consequences of a
rule works change in the normative reach of the rule itself. It
would be an injustice within the meaning of Bradley to charge
individual employers with anticipating this change in damages
available under Title VII. Unlike Bradley, where the statutory
change provided only an additional basis for relief already
available, compensatory and punitive damages impose "an additional
or unforeseeable obligation" contrary to the well-settled law
before the amendments. 416 U.S. at 721. We conclude that the
damage provisions of the Civil Rights Act of 1991 do not apply to
conduct occurring before its effective date.
The judgment of the district court is AFFIRMED.
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