Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
8-27-2008
Stremple v. Sec Dept Veterans
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3807
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Stremple v. Sec Dept Veterans" (2008). 2008 Decisions. Paper 621.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/621
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 06-3807
__________
JOHN F. STREMPLE
v.
R. JAMES NICHOLSON,
SECRETARY OF THE DEPARTMENT OF VETERANS AFFAIRS,
Appellant
__________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 01-cv-00890)
Magistrate Judge: Honorable Francis X. Caiazza
__________
Submitted Under Third Circuit LAR 34.1(a)
on October 31, 2007
Before: RENDELL and NYGAARD, Circuit Judges,
and McCLURE, District Judge.
(Filed August 27, 2008)
__________
OPINION OF THE COURT
__________
_____________________________
* Hon. James F. McClure, Jr., Judge of the United States District Court for the
Middle District of Pennsylvania, sitting by designation.
RENDELL, Circuit Judge.
The Secretary of the Department of Veterans Affairs (the “Secretary”) appeals an
adverse determination by the Magistrate Judge after a bench trial on John F. Stremple’s
civil action for age discrimination, hostile work environment, and retaliation resulting in
constructive discharge.
An army veteran, Dr. Stremple served as Chief of Surgery at the Veterans Affairs
Health Care System (“V.A.”) in Pittsburgh, Pennsylvania for 21 years. He also held a
concurrent position as Professor of Surgery at the University of Pittsburgh School of
Medicine. Dr. Stremple ran the surgical services at the Pittsburgh V.A. until he was
supplanted in 1997 when the V.A. restructured itself and created a “surgical specialty care
service line.” Although Dr. Stremple applied for the position of Product Line Manager
for Surgical Specialty Care Services, he was passed over in favor of Nurse Carolyn
Bechtold, who had no surgical experience but, in the selection committee’s view, had
stronger administrative skills. Shortly thereafter, Dr. Stremple contacted an Equal
Employment Opportunity Commission (“EEOC”) counselor, but was dissuaded from
filing a formal complaint by the Medical Center Director Thomas Cappello.
Subsequently, at various meetings in February 1998, Dr. Marshall Webster urged
Dr. Stremple to retire and told him Cappello was behind the offer. From the time the
informal EEOC complaint was made, Dr. Stremple received poor evaluations after years
of only “outstanding” and “highly satisfactory” evaluations. Supervisors, including
2
Nurse Bechtold, Anita Steinmiller, and Assistant Chief of Staff David Eibling, routinely
made ageist comments.
On March 5, 1998, Dr. Stremple’s immediate supervisor Dr. Ernest Urban
transferred him full time from University Drive, where he was Chief of Surgery, to a
different and remote facility, Aspinwall. This transfer was considered a demotion (or
even a firing) by other doctors and significantly impaired Dr. Stremple’s ability to
function as Chief of Surgery. Immediately following his transfer to Aspinwall, he filed a
formal EEOC complaint. His office at University Drive was then moved several floors
away from the operating rooms and efforts were made to exclude him from the operating
floor. Thereafter, Dr. Webster called two additional meetings to encourage him to retire
at which Dr. Stremple was told that Cappello wanted him out and he should stop the
EEOC suit.
On July 27, 1999, after he had agreed to a buyout from the University of Pittsburgh
Medical School, Dr. Stremple resigned from his position at the V.A. Under the terms of
his agreement with the University, he could not apply to any university or V.A. hospitals.
Consequently, he applied for Chief of Surgery positions at the two remaining major
hospitals in the Pittsburgh area. He did not receive these jobs and allowed his medical
license to lapse in 2000.
In May 2001, Dr. Stremple filed suit under Title VII, the Age Discrimination in
Employment Act (“ADEA”), the Fair Labor Standards Act, and Pennsylvania common
3
law, alleging that the V.A. had created a hostile work environment and engaged in age
discrimination and retaliation resulting in constructive discharge. The Magistrate Judge
heard extensive testimony over the course of a nine-day bench trial. Ultimately, the Judge
rejected Dr. Stremple’s hostile work environment claim, but found that he had established
age discrimination and retaliation resulting in constructive discharge by a preponderance
of the evidence. He, therefore, issued judgment in favor of Dr. Stremple on those claims
and awarded backpay in the amount of $1,020,031.25, equivalent to his salary as Chief of
Surgery for 6.25 years, the time remaining until his planned retirement.
The Secretary now appeals, raising three issues. First, it contends that the federal
sector provision of the ADEA, which provides that “[a]ll personnel actions affecting
employees or applicants for employment who are at least 40 years of age . . . shall be
made free from any discrimination based on age,” 29 U.S.C. § 633a(a), does not provide a
cause of action for retaliation claims against the government or waive sovereign
immunity for such claims. Second, it questions whether Stremple met the legal standard
for establishing constructive discharge. Third, it contends that because Stremple allowed
his medical license to lapse a year after his discharge, he is not entitled to damages for the
entire 6.25-year period. We have jurisdiction to decide the issues on appeal pursuant to
28 U.S.C. § 1291.
4
I.
We have little difficulty in disposing of the first issue, since that claim, although an
issue of first impression when first briefed in connection with this appeal, has since been
settled by virtue of the Supreme Court’s opinion in Gomez-Perez v. Potter, 128 S. Ct.
1931 (2008). There, the Court held that a retaliation claim does lie under section 633a of
the ADEA, and, specifically, that section 633a(c) “unequivocally waives sovereign
immunity for a claim brought by ‘any person aggrieved’” by a section 633a violation. Id.
at 1943. Accordingly, we will not disturb the Magistrate Judge’s ruling on this issue.
II.
The Secretary also contests the Magistrate Judge’s ruling that Stremple met the
standard of proof required for a constructive discharge claim. Because the Secretary
challenges the court’s application of law to the facts as found, our review is plenary.
Bennun v. Rutgers State Univ., 941 F.2d 154, 170 (3d Cir. 1991).
The Secretary claims that Stremple failed to make the showing required by the
Supreme Court’s opinion in Penn. State Police v. Suders, 542 U.S. 129 (2004), in which
the Court held that, in order to succeed on a compound claim of constructive discharge
due to hostile work environment, a claimant must make an additional showing beyond
that required for a hostile work environment claim alone. The Secretary’s argument
appears to overlook the fact that, in Suders, the Court did not set forth a rule for all
constructive discharge claims, but rather dealt only with the issue of an employer’s
5
liability for constructive discharge resulting from a hostile work environment attributable
to a supervisor. Id. at 143.
Here, the judgment in favor of Dr. Stremple was not based on a compound claim
of constructive discharge brought about by a hostile work environment. Although
Dr. Stremple asserted a hostile work environment claim, the Magistrate Judge rejected it.
Instead, the Judge found that “Dr. Stremple was the subject of age discrimination and
retaliation and . . . said conduct was a substantially motivating and/or determinative factor
regarding events leading to his constructive discharge.” App. 53. Thus, the burden for a
claim of constructive discharge, not the showing required for the compound claim at issue
in Suders, applies.
The Magistrate Judge, accordingly, identified the appropriate standard for
constructive discharge, finding that “the[] events were sufficiently intolerable that a
reasonable person would have felt compelled to resign.” App. 59; see also Duffy v. Paper
Magic Group, Inc., 265 F.3d 163, 167 (3d Cir. 2001) (summarizing standard as “the
employer permitted conditions so unpleasant or difficult that a reasonable person would
have felt compelled to resign”). In applying the standard, the Judge found that
Dr. Stremple suffered “a slow degradation of his responsibilities, status, and authority,”
App. 60, and concluded that he “ha[d] presented a textbook case of constructive
discharge,” App. 67.
6
A review of the record makes clear that Magistrate Judge properly applied the
standard to the facts. Constructive discharge is a heavily fact-driven determination.
Levendos v. Stern Entm’t, Inc., 860 F.2d 1227, 1230 (3d Cir. 1988). Accepting the facts
as found by the Magistrate Judge, which the Secretary does not contest, there is ample
evidence that Stremple was forced out of his position, his work was made intolerable, and
his supervisors acted with retaliatory animus toward him, leading to a constructive
discharge. Virtually all of the factors that should be considered in a constructive
discharge case, known as the Clowes factors,1 were present in Dr. Stremple’s case.
Clowes v. Allegheny Valley Hosp., 991 F.2d 1159 (3d Cir. 1993), cert. denied, 510 U.S.
964 (1993). In his 22-page opinion reviewing the facts presented during the 9-day trial,
the Magistrate Judge determined that the V.A. engaged in an ageist and retaliatory course
of action which eviscerated Dr. Stremple professionally and personally. The Judge
considered all of the evidence and rejected the testimony of Dr. Cappello. He found that
Dr. Cappello acted with retaliatory animus against Dr. Stremple and wanted to be rid of
him. One of the supervisors who testified, Dr. Webster, even acknowledged that
Dr. Cappello wanted Dr. Stremple “out.” The Magistrate Judge also found that
Dr. Urban, Dr. Stremple’s supervisor, acted with retaliatory animus, that his
1
These are: “(1) a threat of discharge; (2) suggestions or encouragement of resignation;
(3) a demotion or reduction of pay or benefits; (4) involuntary transfer to a less desirable
position; (5) alteration of job responsibilities; (6) unsatisfactory job evaluations.” Suders
v. Easton, 325 F.3d 432, 445 (3d Cir. 2003), vacated on other grounds, Penn. State Police
v. Suders, 542 U.S. 129 (2004) (summarizing Clowes v. Allegheny Valley Hosp.).
7
documentation was “suspect,” and that he was involved in a conspiracy to force
Dr. Stremple to resign. App. 58. The Magistrate Judge noted the ageist comments and
complicity of other doctors and nurses. The Judge recognized that the conduct of
Stremple’s superiors showing efforts to force his resignation, taken together with the
other evidence of ageist statements, transfer, relocation of his office, etc., provided
sufficient evidence to establish constructive discharge. Given the Judge’s credibility
findings and assessment of the evidence, his constructive discharge ruling should not be
disturbed.
III.
The Secretary also challenges the award of 6.25 years’ backpay. It faults
Dr. Stremple for applying for only two positions during the 6.25-year period at issue and
allowing his medical license to lapse. It argues that, so doing, he failed to mitigate
damages and that, even if he did mitigate damages, backpay should have been awarded
only until the date Stremple allowed his medical license to lapse. We review the question
of whether a claimant has met his or her duty to mitigate damages for clear error, Booker
v. Taylor Milk Co., 64 F.3d 860, 864 (3d Cir. 1995), and review the calculation of
backpay for abuse of discretion, Durham Life Ins. Co. v. Evans, 166 F.3d 139, 156
(3d Cir. 1999). Under either standard, we believe that the Magistrate Judge’s ruling
should not be disturbed.
8
As the Secretary acknowledges, in order to prove a failure to mitigate, an employer
must demonstrate that substantially equivalent work was available, and that the claimant
did not exercise reasonable diligence to obtain such employment. Le v. Univ. of Penn.,
321 F.3d 403, 407 (3d Cir. 2003). Here, the Magistrate Judge found that Dr. Stremple
had made reasonable attempts to mitigate in light of “(a) the highly specialized and
unique nature of the plaintiff’s former position, (b) his unsuccessful applications for chief
of surgery positions at the two major non-university-affiliated hospitals in the Pittsburgh
area, and (c) his credible testimony regarding the prohibitive costs of malpractice
insurance given his financial position.” App. 67. The Judge, therefore, awarded damages
up to Dr. Stremple’s intended retirement date.
While the Secretary urges that this was error, we disagree. We believe there was
adequate basis for the Magistrate Judge’s determination that Dr. Stremple made sufficient
efforts to find other employment and, in light of his inability to do so, ceasing to maintain
his license was a financial necessity, and not a disqualifying factor with respect to the
damage award.
Accordingly, we will AFFIRM the Order of the District Court.
9