Walker v. United Parcel Service, Inc.

F I L E D
United States Court of Appeals
Tenth Circuit

FEB 27 2001
PUBLISH

UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk

TENTH CIRCUIT
_________________________

TONYA WALKER,

Plaintiff-Appellant,

v. No. 99-5159

UNITED PARCEL SERVICE, INC.,

Defendant-Appellee.
_________________________

Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. CV-97-1042-BU)
_________________________

Thomas L. Bright, Tulsa, Oklahoma for Plaintiff-Appellant.

Sam Reynolds Fulkerson (Peter T. Van Dyke on the brief) of McAfee & Taft,
Oklahoma City, Oklahoma for Defendant-Appellee.
_________________________

Before HENRY and BRISCOE, Circuit Judges, and SHADUR, District Judge. *
_________________________

SHADUR, District Judge.
_________________________

*
The Honorable Milton I. Shadur, Senior United States District Judge
for the Northern District of Illinois, sitting by designation.
 Tonya Walker (“Walker”) sued her employer United Parcel Service, Inc.

(“UPS”), advancing federally-based claims under Title VII of the Civil Rights Act

of 1964 as amended (“Title VII,” 42 U.S.C. §2000e to 2000e-17) and the Family

and Medical Leave Act of 1993 (“FMLA,” 29 U.S.C. §2601-2654) and various

tort claims under Oklahoma common law. 1 Walker’s Title VII claims were based

on alleged sexual harassment and on retaliation for filing a claim with the Equal

Employment Opportunity Commission (“EEOC”), while her FMLA claim was

based on a suspension she received for excessive absenteeism and job

abandonment while she was pregnant. As for her three state law claims, Walker

voluntarily dismissed two of them, and the third was dismissed via summary

judgment. Walker does not appeal from that dismissal.

Walker does appeal from the district court’s grant of summary judgment in

favor of UPS on her federal claims. She asserts a number of grounds for reversal.

As for her Title VII claim, the district court dismissed it without prejudice

because EEOC--in violation of its own regulation (“the Regulation,” 29 C.F.R.

§1601.28(a)(2))--failed to attach a certificate to Walker’s Notice of Right To Sue

(“Notice” or “right-to-sue letter”) stating that it would be unable to complete its

administrative processing of her charge within 180 days of its filing. After

1
This opinion’s citations to each of the federal statutes simply take the
form “Section--,” omitting any reference to Titles 42 and 29. That should not
create confusion, because there is a wide difference in the section numbering as
between Title VII and the FMLA.
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Walker then obtained an affidavit from an EEOC enforcement manager stating

that the failure to attach the certificate was an oversight, she filed what we treat

as a timely Fed. R. Civ. P. (“Rule”) 59(e) motion to alter or amend the judgment.

Walker now appeals the denial of that motion as well.

On Walker’s FMLA claim, the district court granted summary judgment in

favor of UPS after finding that Walker had no grounds for relief under the FMLA

because (1) she lost no pay or benefits for the alleged violation of her FMLA

rights, (2) the FMLA does not provide for nominal damages and (3) she was not

entitled to any equitable relief. Walker contends that the district court erred in

ruling that nominal damages are not recoverable under the FMLA.

Walker also ascribes two other errors to the district court. First, she

complains of the denial of her request to add a claim for constructive discharge

under Title VII as untimely, prejudicial and futile. Second, she disputes the

district court’s award of costs to UPS as the prevailing party.

We first hold that the district court erred in dismissing Walker’s Title VII

claim based on EEOC’s oversight. In that respect we decline to adopt the District

of Columbia Circuit’s recent holding that the Regulation is invalid, siding instead

with the Eleventh and Ninth Circuits in upholding the Regulation. As for the

remaining bases for appeal, we agree with the district court that nominal damages

are not available under the FMLA and therefore affirm the dismissal of that claim.

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We also hold that the district court did not abuse its discretion in denying

Walker’s request to supplement her complaint with a claim for constructive

discharge. But because we reverse the summary judgment for UPS on Walker’s

Title VII claim, we vacate the award of costs for UPS. In sum, we AFFIRM in

part and REVERSE in part for the reasons set forth in this opinion.

Background

Walker began working as a UPS driver in 1990. On August 25, 1997 she

filed a charge of sex discrimination with EEOC, citing various sexist remarks by

her supervisor and alleging that she was disciplined more often than male drivers.

On October 3 Walker wrote to EEOC, asking that it issue her a Notice. On

October 22 Walker received EEOC’s right-to-sue letter, which noted that it was

being issued “at the charging party’s request.” EEOC failed to attach a

certificate, as called for in the Regulation, stating that it had determined it would

be unable to complete its administrative processing of Walker’s charge within 180

days.

On November 6, 1997 Walker filed suit against UPS in an Oklahoma state

court. On November 25 UPS timely removed Walker’s suit to the federal district

court for the Northern District of Oklahoma on the basis of federal question and

supplemental jurisdiction.

One month later (on December 24) UPS terminated Walker, citing

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excessive absenteeism and job abandonment as of December 18. Walker filed a

grievance with the local Teamsters union challenging the termination as having

violated the FMLA because her absences were pregnancy-related and because she

had notified her supervisor on December 18 that she was suffering from morning

sickness due to her pregnancy and was unable to drive safely. UPS and the

Teamsters union agreed to reduce the termination to a five-day suspension. Thus

on January 12, 1998 Walker took a seven-month pregnancy related health leave of

absence, with which the five-day suspension ran concurrently.

In March 1998 Walker supplemented her then pending Title VII action

against UPS with a claim that the suspension violated her rights under the FMLA.

Some months later, in August 1998, Walker returned to work for UPS. Finally, in

consequence of what she alleged to be continuing sexual harassment and sex

discrimination, Walker resigned on September 19 and began working for Federal

Express.

At a district court pretrial conference on October 1, Walker’s counsel made

an oral request to supplement both her Amended Complaint and the Agreed

Pretrial Order with a claim for constructive discharge in violation of Title VII,

based on her September 19 resignation. Because the district court found that the

late addition of that new claim would unduly prejudice UPS and would be futile

because it too would be subject to dismissal based on the incomplete Notice, it

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denied Walker’s motion.

Dismissal of Title VII Claim

Section 2000e-5(f)(1) permits anyone who has filed an EEOC charge to

bring a civil action either after EEOC has dismissed the charge or after 180 days

if EEOC has not yet filed a civil action or entered into a conciliation agreement.

Because of its early recognition that its caseload may be so heavy that it can be

determined at an earlier date that no action can be taken on a charge within that

180 day period, in 1977 EEOC issued the Regulation, which authorizes its

issuance of a Notice upon a charging party’s request before expiration of that

period if it is probable that EEOC will be unable to complete its administrative

processing of the charge within that time frame. In part the regulation provides

that a designated official must not only make such a determination but must also

attach a written certificate to that effect to the early Notice. Because the Notice

to Walker did not have such a certificate attached, the district court found that

Walker’s Title VII claims were not properly before it and dismissed the claims

without prejudice.

Despite that “without prejudice” label, in real world terms the dismissal

was with prejudice because any attempt by Walker to refile her claims after the

district court’s order was issued would be out of time (Gocolay v. New Mexico

Fed. Sav. & Loan Ass’n, 968 F.2d 1017, 1021 (10th Cir. 1992)). That is so

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because at the time of dismissal well over 300 days had passed since UPS’

allegedly unlawful employment practices had occurred and well over 90 days had

passed since Walker’s right to sue notice was issued (Sections 2000e-5(e)(1) and

-5(f)(1)), and because the dismissal was not conditioned on UPS’ agreement to

waive any limitations defense if Walker were to file suit again after the asserted

flaw had been cured. We therefore treat the district court’s order as a dismissal

with prejudice, keeping in mind that “the law favors the resolution of legal claims

on the merits” (Gocolay, 968 F.2d at 1021).

Walker appeals not only the district court’s adverse summary judgment

ruling on her Title VII claim but also the district court’s denial of her “Motion To

Reconsider and Vacate the Summary Judgment Granted on Plaintiff’s Title VII

Claims.” Both the parties and the district court have spoken of the latter motion

as one brought under Rule 59(e)--an inaccurate label, given the fact that at the

time of its filing Walker’s FMLA claims were still alive, so that there was then no

final judgment in place. But when final judgment was indeed entered on

December 7, 1998 (upon the dismissal of the FMLA claims as well), it was

entirely appropriate at that point for the district court to treat the motion to

reconsider (though filed a few days earlier) as an effective Rule 59(e) motion (see

Hilst v. Bowen, 874 F.2d 725, 726 (10 th Cir. 1989) (per curiam) and numerous

cases cited there).

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 In any event, as indicated earlier, that motion was based on a corrected

Notice that Walker obtained from EEOC (bearing the same date as the original

Notice) and on an affidavit that she obtained from EEOC Enforcement Manager

Alma J. Anderson stating that Walker’s original Notice should have had the

required certificate attached. On the ground that with the exercise of due

diligence Walker should have been able to obtain the corrected Notice and

affidavit before the entry of summary judgment, the district court declined to alter

or amend that judgment.

If the only question before us were the propriety of the district court’s grant

of summary judgment, we would review that grant de novo, applying the same

legal standard used by the district court under Rule 56(c) (NLRB v. Pueblo of San

Juan, 228 F.3d 1195, 1198 (10 th Cir. 2000). In those terms “summary judgment is

appropriate when the evidence taken as a whole show[s] that there is no genuine

issue as to any material fact and that the moving party is entitled to a judgment as

a matter of law” (id., quoting Rule 56(c)).

Matters may be made more complex when we also review the denial of a

Rule 59(e) motion, a question that we regularly examine through an abuse-of-

discretion lens (see, e.g., Phelps v. Hamilton, 122 F.3d 1309, 1324 (10 th Cir.

1997)). At least one court has shifted to a de novo standard where both types of

rulings are involved, apparently on the theory that a timely Rule 59(e) motion

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deprives an earlier grant of summary judgment of finality so as to call for a less

stringent type of review on the consequently timely appeal from the summary

judgment ruling (see Perez v. Aetna Life Ins. Co., 96 F.3d 813, 819 (6 th Cir.

1996), vacated for en banc hearing on other grounds, 106 F.3d 146 (6 th Cir.

1997)). But we need not reach that issue, one that has not been addressed in our

Circuit, for Walker succeeds even under the more demanding abuse-of-discretion

standard, as to which Phelps, 122 F.3d at 1324 (citations omitted) teaches:

[A] trial court’s decision will not be disturbed unless the appellate
court has a definite and firm conviction that the lower court made a
clear error of judgment or exceeded the bounds of permissible choice
in the circumstances.

We hold that in those terms the district court erred in dismissing Walker’s

Title VII claim because of EEOC’s administrative oversight. Walker herself took

every step required to exhaust her administrative remedies: She filed a

simultaneous charge with EEOC and the Oklahoma Human Rights Commission,

and her request for an early Notice was authorized by the Regulation. Then on

receiving the Notice she filed suit within 90 days as the Notice (consistently with

the statute) directed. Walker’s right to sue is conditioned only on her taking all

steps necessary for administrative exhaustion, not on EEOC’s performance of its

administrative duties (accord, Jefferson v. Peerless Pumps Hydrodynamic, Div’n

of FMC Corp., 456 F.2d 1359, 1361 (9th Cir. 1972)).

Indeed, as a policy matter Walker should be entitled to rely in good faith on

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the accuracy of a notice sent to her by a federal administrative agency. She

should not be denied her day in court because of EEOC’s negligence. Nor should

she or her counsel, as UPS would have it, be commandeered to act as EEOC’s

superintendent, obligated to oversee its processing of the charge to ensure that it

is following its own regulations. As Springer v. Partners in Care, 17 F.Supp.2d

133, 141 (E.D.N.Y. 1998) has put it:

[I]t is patently evident that it would be...unfair to deny an individual
plaintiff the opportunity to litigate a claim of discrimination because
of the EEOC’s administrative foibles, particularly in the absence of
an express congressional mandate requiring that result.

Accord, Reese v. Atlantic Steel Co., 282 F.Supp. 905, 906 (N.D. Ga. 1967).

UPS’ related argument that Walker somehow prevented EEOC from

performing its duty to seek conciliation by requesting an early right to sue notice

also fails. Of course EEOC had the authority either to accede to Walker’s request

or to deny it and proceed with the processing of her claim. Private parties such as

Walker do not have the power to take away EEOC’s enforcement authority or to

force it to issue early right to sue notices (cf. EEOC v. Frank’s Nursery & Crafts,

Inc., 177 F.3d 448, 456 (6th Cir. 1999)(“Significantly, an individual may not, in

an effort to effectuate her own interests, take away the enforcement authority of

the EEOC even if she wishes to withdraw her charge of discrimination”)). 2

2
UPS’ Br. 19 assertion that “neither Walker nor the EEOC had any
information whatsoever regarding UPS’s willingness to resolve the dispute
through conciliation or otherwise” has a disingenuous ring: After all, UPS has
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 We thus reverse both the district court’s grant of summary judgment in

favor of UPS and its denial of Walker’s Rule 59(e) motion. Because Walker

merely sought to cure any technical noncompliance by EEOC (and did not seek to

be relieved from any fault on her own part), and given both the preference for

resolving claims on the merits and the fact that the district court’s nominally

without-prejudice dismissal would actually operate as a dismissal with prejudice,

we hold that the district court abused its discretion in its rulings.

Validity of the Regulation 3

UPS argues in the alternative that even if Walker’s Title VII claims should

not be dismissed because of EEOC’s failure to attach the certificate required by

the Regulation, Walker’s Notice is nonetheless void because it was issued before

the expiration of 180 days from the filing of her charge. That, according to UPS,

is not permissible under the statute.

There is a split of authority among the Courts of Appeals on the validity of

been aware of Walker’s claim since at least November 1997 and has had ample
time to take conciliatory action on its own initiative if it wished to do so, without
prodding from EEOC (see Reese, 282 F.Supp. at 906). Moreover, even if UPS
had been willing to enter into a conciliation agreement, that would not change the
fact that EEOC determined it did not have adequate resources to negotiate such an
agreement between UPS and Walker within 180 days.
3
This issue is so much at the forefront of employment discrimination
jurisprudence that it was recently the subject of the lead article in a “Legal News”
segment of United States Law Week, 69 U.S.L.W. 2259-60 (Nov. 7, 2000).
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EEOC’s issuance of early right-to-sue notices. Both the Eleventh Circuit 4 and the

Ninth Circuit 5 have held that practice valid, 6 while the District of Columbia

Circuit has recently held to the contrary. 7 After careful consideration, we side

with the Eleventh and Ninth Circuits (and with the Second Circuit’s pre-

Regulation analysis) and elaborate on their reasoning.

When the validity of an agency regulation is at issue, we follow the two-

step approach announced in Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 842-43 (1984). Under the first step we determine if

the statute is ambiguous. If it is not, we must give effect to the unambiguously

expressed intent of Congress. If however the statute is silent or ambiguous as to

the specific issue, we defer to the agency’s interpretation of the statute if it is

reasonable (id.).

4
Sims v. Trus Joist MacMillan, 22 F.3d 1059, 1061-63 (11th Cir. 1994).
5
Brown v. Puget Sound Elec. Apprenticeship & Training Trust, 732 F.2d
726, 729 (9 Cir. 1984) is the most recent of three decisions from that Circuit so holding,
th

adhering to the position initially set out without reference to the Regulation in Bryant v.
California Brewers Ass’n, 585 F.2d 421, 425 (9th Cir. 1978), vacated and remanded on
other grounds, 444 U.S. 598 (1980).
6
That same position was taken by the Second Circuit in Weise v.
Syracuse Univ., 522 F.2d 397, 412 (2d Cir. 1975) even before adoption of the
Regulation, that court also having been persuaded that it does not serve Title
VII’s purposes for EEOC to hold charges for 180 days when reaching conciliation
during the time frame is not in the cards.
7
Martini v. Federal Nat’l Mortgage Ass’n, 178 F.3d 1336, 1340-48 (D.C.
Cir. 1999).
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 In this instance the precise issue is whether Title VII prohibits EEOC from

issuing right-to-sue letters before the expiration of 180 days from the filing of a

charge. Even Martini, 178 F.3d at 1345 agrees with the other Circuits that

Section 2000e-5(f)(1) does not unambiguously address that issue--that is, it does

not expressly prohibit EEOC from issuing such notices earlier. Here is the

relevant part of that section:

If a charge filed with the Commission...is dismissed by the Commission, or
if within one hundred and eighty days from the filing of such charge...the
Commission has not filed a civil action...or the Commission has not entered
into a conciliation agreement to which the person aggrieved is a party, the
Commission...shall so notify the person aggrieved and within ninety days
after the giving of such notice a civil action may be brought against the
respondent named in the charge.

Congress added Section 2000e-5(f) as part of the 1972 amendments to Title

VII to protect aggrieved parties from lengthy delays occasioned by administrative

backlog. According to the legislative history, “the 180-day provision allows the

person aggrieved to elect to pursue his or her own remedy under this title in the

courts where there is agency inaction, dalliance or dismissal of the charge, or

unsatisfactory resolution” (Martini, 178 F.3d at 1345, quoting 118 Cong. Rec.

7168 (1972)(internal brackets omitted); see also Sims, 22 F.3d at 1061 (“the

purpose of the 180-day period is to protect the aggrieved party from extended

administrative proceedings or bureaucratic backlog”)). Given the purpose of the

180 day limit in Section 2000e-5(f)(1), the Eleventh and Ninth Circuits have

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reasoned that EEOC’s early right-to-sue Regulation furthered that purpose by

allowing aggrieved parties to file suit even earlier if EEOC itself determined that

it could not investigate the party’s charge within 180 days (Sims, 22 F.3d at 1061-

63; Brown, 732 F.2d at 729). Those Circuits have therefore held the Regulation

to be a reasonable interpretation of the statute.

Martini, 178 F.3d at 1345 found it plausible to argue that the Regulation

furthered Congress’ purpose in enacting Section 2000e-5(f)(1). Nevertheless it

held the Regulation invalid because it is assertedly inconsistent with a statutory

provision that had not been considered by the earlier decisions, Section 2000e-

5(b):

Whenever a charge is filed by or on behalf of a person claiming to be
aggrieved...the Commission...shall make an investigation thereof.

Because issuance of an early right to sue letter effectively terminates

administrative processing of a charge, Martini, 173 F.3d at 1347 (citation omitted)

concluded that any such issuance violated EEOC’s mandate to investigate every

charge filed:

As we stated at the outset, the precise question at issue in this case is
whether Congress clearly intended to prohibit private suits within 180 days
after charges are filed. Because the power to authorize early private suits
inevitably and impermissibly allows the EEOC to relax its aggregate effort
to comply with its statutory duty to investigate every charge filed, we think
the answer is yes.

We respectfully disagree with the District of Columbia Circuit’s reading of

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the statute. Congress’ 1972 amendment to Section 2000e-5(f)(1) to allow

aggrieved parties to file civil actions if EEOC failed to act on a charge for 180

days itself created an obvious tension with the earlier-enacted Section 2000e-5(b):

Despite EEOC’s stated duty to investigate every charge, Congress acknowledged

that EEOC’s inability to complete its performance of that duty should not deprive

a private charging party of the right to institute a court action and thus terminate

EEOC’s jurisdiction. There was an explicit acknowledgment in the legislative

history that “it will not be possible to render a decision in all cases within the

time limits prescribed” (H.R. Rep. No. 92-238 (1971), reprinted in 1972

U.S.C.C.A.N. 2137). But at the same time, that look into the future was also

coupled with the roseate view that “recourse to the private lawsuit will be the

exception and not the rule” (118 Cong. Rec. 7168 (1972), ironically cited by UPS

Br. 20).

It quickly became apparent that the congressional crystal ball was accurate

as to the first of those statements but hopelessly clouded as to the second. And

the combination of an increasingly heavy load of Title VII charges and the

inadequacy of EEOC’s resources to deal with them (an inadequacy, it will be

remembered, that only Congress could overcome by increased funding) led to

EEOC’s adoption of the Regulation just five years later, in 1977. With nothing in

Section 2000e-5(f)(1) to foreclose it (as Martini itself has acknowledged),

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EEOC’s realistic evaluation of the situation by adopting the Regulation must be

viewed as a reasonable interpretation of the statute as amended.

Aggrieved parties must still file charges with EEOC before going to court.

That comports with Title VII’s original purpose of vesting initial responsibility

for disposing of employment discrimination complaints with EEOC, to enable it

to encourage informal conciliation. If a grievant--concerned that the 180-day

period may bring nothing but delay, with no steps taken toward resolution of his

or her claim--requests an early right-to-sue letter, EEOC still has the duty to

review and consider the charge. And if its designated official determines that the

realities of caseload and staffing will disable EEOC from completing its task in

180 days, the Regulation says it can issue the Notice. But--importantly--the

official reviewing the charge retains the power to deny a claimant’s request if

upon review he or she determines that the parties’ interests would be better served

by retention of the charge for further administrative processing in which EEOC

will devote some of its limited resources to seek to complete its work within 180

days. That procedure, under which EEOC has and exercises the power to

determine whether or not an early right-to-sue letter is warranted, directly furthers

Congress’ original purpose in adopting Section 2000e-5(f)(1): protecting

aggrieved individuals from undue delay by releasing them from the

“administrative quagmire which occasionally surrounds a case caught in an

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overloaded administrative process” (H.R. Rep. No. 92-238 (1971), reprinted in

1972 U.S.C.C.A.N. 2137). 8

It is relatedly important to look to a factor that Martini did not consider:

Congress’ further amendment of Title VII in 1991 without taking issue with the

Regulation, which had then been in place for fully 14 years with its validity

having been the subject of debate within the district courts (compare, e.g., Rolark

v. University of Chicago Hosps., 688 F.Supp. 401, 402-04 (N.D. Ill. 1988), noting

division among the district courts on the issue and finding the Regulation valid,

with True v. New York State Dep’t of Correctional Servs., 613 F.Supp. 27, 29-30

(W.D.N.Y. 1984), citing cases going both ways and holding the Regulation

invalid)). North Haven Bd. of Ed. v. Bell, 456 U.S. 512, 535 (1982)(internal

quotation marks and citations omitted) is among many cases repeating the familiar

wisdom to be drawn from such a situation:

Where an agency’s statutory construction has been fully brought to
the attention of the public and the Congress, and the latter has not
sought to alter that interpretation although it has amended the statute
in other respects, then presumably the legislative intent has been
correctly discerned.

See also such cases as United States v. Rutherford, 442 U.S. 544, 554 n. 10

8
As indicated earlier, the only flaw in the quoted language was in its
use of the hopeful adverb “occasionally.” But just as Congress cannot fairly be
faulted for its lack of prescience, so EEOC cannot be faulted for having addressed
the situation realistically when the “overloaded administrative process” turned out
to be overwhelming.
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(1979)).

Plainly EEOC’s regulation has not escaped public or legislative notice over

what has been nearly a quarter century. To the contrary, the progress and policies

of EEOC (most significantly, its inability--given its staffing level--to cope with

its overwhelming backlog in terms of the statutory 180-day period) are regularly

brought to Congress’ attention (see, e.g., Depts. of Commerce, Justice, and State,

The Judiciary, and Related Agencies Appropriations for 1999: Hearings Before a

Subcommittee of the Committee on Appropriations, 105 th Cong. 447-452

(1998)(statement of Paul M. Igasaki, Chairman, U.S. Equal Employment

Opportunity Commission); The Future Direction of the Equal Employment

Opportunity Commission: Hearing Before the Subcommittee On Employer-

Employee Relations, House Comm. on Ed. and the Workforce, 105 th Cong. 59-62

(1998)(statement of Honorable Harris W. Fawell, Chairman, Subcommittee on

Employer-Employee Relations), and id. 79-94 (written statement of Paul M.

Igasaki, Chairman, U.S. Equal Employment Opportunity Commission)). In recent

years particular emphasis has been placed on EEOC’s continuing efforts to

decrease its backlog of pending charges (as well as decreasing the amount of time

that charges lie pending) by implementing more efficient procedures for

reviewing charges-- procedures that include the immediate dismissal of charges

that appear meritless on their face so that EEOC can focus its limited resources on

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charges warranting further investigation (id.).

If EEOC’s effort to meet the same goal of dealing with its backlog via the

Regulation had been met with congressional disfavor, it is surely reasonable to

expect that a move would have been launched to repudiate the Regulation via

statutory amendment. While silence on Congress’ part is of course not

dispositive, here it lends strong credence to finding the Regulation consistent with

the statutory language and intent. And that bolsters an affirmative answer to the

Chevron analysis granting deference to EEOC’s reading.

Relatively early in the life of Title VII, Love v. Pullman Co., 404 U.S. 522,

526-27 (1972) warned against unnecessarily technical readings of the statute.

Martini’s holding that aggrieved individuals must sit on their charges until 180

days has passed, even when EEOC knows full well that it cannot complete its

processing in that time, strikes us as not only imprudent as a practical matter but

also as an overly strict and technical reading of a statute susceptible to more than

one reasonable interpretation. We therefore uphold EEOC’s reading, one that has

been at least implicitly accepted by Congress for over 23 years.

Nominal Damages Under the FMLA

Walker’s FMLA claim is based solely on the five-day suspension she

received for excessive absenteeism and job abandonment. At a November 18,

1998 hearing the district court found (and both parties agreed) that Walker had

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suffered no actual damages as a result of that suspension because it ran

concurrently with her disability leave and because she therefore lost no wages or

benefits as a result. Because the district court had previously denied Walker’s

request to add a claim for constructive discharge (and, despite Walker’s present

argument on appeal, she then asserted that claim only under Title VII and not the

FMLA anyway), she advanced no grounds for equitable relief under the FMLA

either. Instead Walker’s last resort was a request for nominal damages. Ruling

that the FMLA does not provide for such nominal damages, the district court

found that Walker had suffered no injury redressable under the FMLA and

granted summary judgment to UPS.

Before us Walker does not contest the district court’s finding that she

suffered no actual damages as a result of UPS’s alleged violation of her rights

under the FMLA. Rather she appeals only the ruling that nominal damages are

not recoverable under the FMLA, which requires our interpretation of a federal

statute--a question of law that we review de novo (Ho v. Greene, 204 F.3d 1045,

1052 (10th Cir.2000)). We agree with the district court’s resolution of that

question.

Section 2617(a)(1)(A)(i) specifies that any employer who violates the

FMLA shall be liable for damages equal to the amount of:

(I) any wages, salary, employment benefits, or other compensation denied
or lost to such employee by reason of the violation; or

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 (II) in a case in which wages, salary, employment benefits, or other
compensation have not been denied or lost to the employee, any
actual monetary losses sustained by the employee as a direct result of
the violation, such as the cost of providing care, up to a sum equal to
12 weeks of wages or salary for the employee.

Because recovery is thus unambiguously limited to actual monetary losses, courts

have consistently refused to award FMLA recovery for such other claims as

consequential damages (Nero v. Industrial Molding Corp., 167 F.3d 921, 930 (5th

Cir. 1999)) and emotional distress damages (Lloyd v. Wyoming Valley Health

Care Sys., Inc., 994 F.Supp. 288, 291-92 (M.D. Pa. 1998)). Thus Cianci v.

Pettibone Corp., 152 F.3d 723, 728-29 (7th Cir. 1998) held that a plaintiff had no

claim under the FMLA where the record showed that she suffered no diminution

of income and incurred no costs as a result of an alleged FMLA violation.

Invoking an attempted analogy to Title VII precedents, Walker argues that

nominal damages should be allowed in FMLA cases because, just as under Title

VII, nominal damages would allow plaintiffs whose rights are violated but who do

not suffer any compensable damages to vindicate those rights. While it is true

that recent cases have rejected the “no harm, no foul” argument in the Title VII

context (see, e.g., Hashimoto v. Dalton, 118 F.3d 671, 675-76 (9th Cir. 1997)),

that was not always so.

Before the 1991 amendments to the Civil Rights Act, nominal damages (as

well as damages for pain and suffering or punitive or consequential damages)

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were not available for Title VII violations, because the statute then provided for

equitable and declaratory relief alone (see Cox v. Phelps Dodge Corp., 43 F.3d

1345, 1347 (10th Cir. 1994)). Nominal damages became available only after 42

U.S.C. §1981a (“Section 1981a,” which governs damages recoverable in cases

brought under Title VII) was amended to allow for compensatory damages in such

actions (nominal damages are generally considered to be compensatory in nature).

Walker’s attempted argument by analogy fails because of the critical

difference in statutory language between Section 2617(a)(1) and the amended

Section 1981a. In contrast to the latter, the earlier quoted Section 2617(a)(1)

does not provide for compensatory damages in general, but is instead expressly

limited to lost compensation and other actual monetary losses. Because nominal

damages are not included in the FMLA’s list of recoverable damages, nor can any

of the listed damages be reasonably construed to include nominal damages,

Congress must not have intended nominal damages to be recoverable under the

FMLA.

We are obligated to honor that intent and therefore to countenance the

award of only those elements of damages that Congress has deemed appropriate to

redress violations of the FMLA. Because Walker has admittedly suffered no

actual monetary losses as a result of UPS’ asserted violation of the FMLA and has

no claim for equitable relief, she has no grounds for relief under that statute.

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Hence UPS is entitled to a judgment as a matter of law on that claim, and the

district court’s ruling to that effect must be affirmed. 9

Constructive Discharge

As stated earlier, Walker also complains of the district court’s rejection of

her oral request, at the October 1, 1998 pretrial conference, to add a Title VII

constructive discharge claim based on her resignation from UPS 12 days earlier.

Rule 15(d) gives trial courts broad discretion to permit a party to serve a

supplemental pleading setting forth post-complaint transactions, occurrences or

events (Gillihan v. Shillinger, 872 F.2d 935, 941 (10th Cir. 1989)). Such

authorization “should be liberally granted unless good reason exists for denying

leave, such as prejudice to the defendants” (id.). Even so, such notions “are

addressed to the sound discretion of the trial court” (id.).

Because Walker moved to add her claim for constructive discharge so late

in the day in terms of the original issues in the case, the district court found that

UPS would be unduly prejudiced if Walker’s motion was granted: Discovery was

closed, UPS was ready for trial or for the alternative of summary judgment, and it

9
Walker seeks to draw support for her position from McDonnell v.
Miller Oil Co., 134 F.3d 638 (4th Cir. 1998), in which a jury had indeed awarded
$1 in nominal damages for a violation of the FMLA. But McDonnell dealt with a
wholly different issue (one relating to attorneys’ fees), with the propriety of a
nominal damages recovery being neither a subject of the appeal nor an issue that
was even discussed by the Court of Appeals. That case provides Walker no
comfort.
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had in fact moved for summary judgment on all of Walker’s claims. Walker’s

proposed new claim would have required additional discovery and precluded the

entry of a final judgment order when the original claims had been resolved via

summary judgment or trial. 10

Under those circumstances we do not view the district court’s refusal to

allow a supplemental claim as an abuse of discretion (see Doelle v. Mountain

States Tel. & Tel., 872 F.2d 942, 947 (10th Cir. 1989 (per curiam)). In any event,

though, that issue seems likely to disappear as a practical matter because in the

interim Walker has filed a separate EEOC charge under Title VII based on the

alleged constructive discharge, has received another right-to-sue letter and has

filed a separate suit. That action has been stayed pending the outcome of this

appeal. Because we are reversing the district court’s grant of summary judgment

on Walker’s other Title VII claims and remanding for further proceedings, it is of

course within the district court’s discretion to consolidate the claims. 11

10
In addition, the district court relied on the perceived futility of a new
Title VII claim because of its view as to early EEOC right-to-sue letters. Because
we have rejected that view, we attach no weight to that additional reason.
11
We need not address Walker’s contention that we should reverse the
district court’s grant of summary judgment on her FMLA claim in this case
because she is entitled to the equitable remedy of reinstatement due to the
constructive discharge, given our affirmance of the district court’s denial of
Walker’s motion to supplement. We note, however, that the record reflects that
the district court understood the constructive discharge claim to be raised only
under Title VII, not under both Title VII and the FMLA.
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 Fee Award

Finally ,Walker appeals the district court’s award of costs (including fees)

to UPS as the prevailing party, an issue reviewed in abuse-of-discretion terms (cf.

Callicrate v. Farmland Indus., Inc., 139 F.3d 1336, 1339 (10th Cir. 1998)). At

this stage UPS no longer qualifies for prevailing party status, a determination that

must await further proceedings. We therefore vacate the award and remand the

issue for further consideration on the resolution of Walker’s Title VII claims (see

North Texas Production Credit Ass’n v. McCurtain County Nat’l Bank, 222 F.3d

800, 819 (10th Cir. 2000, vacating an award of attorney’s fees where summary

judgment reversed).

Conclusion

In sum, we REVERSE the district court’s dismissal of Walker’s Title VII

claims by reason of EEOC’s failure to attach a certificate stating that it would be

unable to complete its administrative processing in 180 days. In that respect we

REVERSE the district court’s determination that EEOC’s early right-to-sue

Regulation is invalid. Accordingly we REMAND Walker’s Title VII claims for

further proceedings on the merits. We AFFIRM the district court’s dismissal of

Walker’s FMLA claim as well as the district court’s denial of Walker’s motion to

supplement her complaint and pre-trial order with a claim for constructive

discharge under Title VII. Finally, in light of this opinion we VACATE the

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district court’s award of fees in favor of UPS and REMAND for future

determination when the Title VII claims are resolved.

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