dissenting in part:
I agree with the majority’s disposition of the merits of this case but believe that a remand to the district court for further factual determinations is necessary before attorney’s fees and prejudgment interest may appropriately be awarded. I believe that the majority engages in impermissible appellate factfinding with regard to what the Postal Service would have done had Clarke been truthful regarding his employment history.
A prevailing Title VII plaintiff “ordinarily is to be awarded attorney’s fees in all but special circumstances.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 417, 98 S.Ct. 694, 698, 54 L.Ed.2d 648 (1978) (footnote omitted). Such “special circumstances” may well be present in this case. Clarke concealed his employment at the Ferry Bank restaurant from the Postal Service when he was asked to report all his interim employment. He assiduously avoided mentioning that employment during his deposition. When Clarke finally did reveal the employment, burying it in a pretrial memorandum, the number of hours worked was understated by half. At trial, in the face of losing a recovery for failure to mitigate damages, Clarke testified that he had worked enough hours at Ferry Bank, when combined with his other work, to constitute full-time employment. The motivation for this concealment most likely was twofold: to defraud the Postal Service by increasing the amount of back pay for which it was liable and to defraud the Internal Revenue Service by concealing a source of income. In short, Clarke concealed his work record when he thought that doing so would help him. He only disclosed the truth when he realized that the truth actually would help him.
*1155The Postal Service claims on appeal, as it suggested to the district court below, that the instant litigation would not have occurred absent Clarke’s concealment of his employment history. If that is the case, it would be unjust to award Clarke attorney’s fees. An award of attorney’s fees under Title VII is designed to compensate parties who must seek redress through the courts in order to obtain that to which they are entitled. Where litigation is not necessary to vindicate an individual’s rights but is caused solely by the wrongful concealment of information, an award of attorney’s fees is inappropriate.
The majority concludes that “Clarke’s failure to reveal his Ferry Bank employment prior to trial did not alter the Postal Service’s position that Clarke never sought comparable work.” Maj.Op. at III-A. How do they know that? The district court made no finding on the issue. It did not even hear any evidence as to the Postal Service’s motivation in refusing Clarke’s back pay claim. We are not the proper body to make such a determination. Appellate courts are ill equipped to make factual determinations such as that made by the majority today. We do not call or examine witnesses and we cannot expand the record before us if it is inadequate. Where the district court has not made the necessary findings the proper course is to remand the matter to the district court. See, e.g., Icicle Seafoods v. Worthington, 475 U.S. 709, 714, 106 S.Ct. 1527, 1530, 89 L.Ed.2d 739 (1986) (“If the Court of Appeals believed that the District Court had failed to make findings of fact essential to a proper resolution of the legal question, it should have remanded to the District Court to make those findings.”); see also 5A J. Moore & J. Lucas, Moore’s Federal Practice § 52.06[2] (1982) (collecting cases).
In asserting that there is no need for an evidentiary hearing to determine the Postal Service’s pretrial motivation for its refusal to award back pay the majority states: “Such a hearing would attempt to ascertain the Postal Service’s pre-trial motivation from its post-trial representations.” Maj. Op. n. 3. This is not necessarily the case. The Postal Service might provide evidence that predated the trial such as internal memoranda regarding Clarke’s case, records of decisions to proceed or not proceed in analogous cases or general written directives regarding when to settle a case and when to take it to trial.
The majority also states that “the Postal Service’s post-trial protestations cannot outweigh its assertions at trial that Clarke did not deserve back pay because he had failed to seek comparable employment.” Id. The Postal Service’s “assertions at trial” are not as unambiguous as the majority presents them. The majority selectively quotes from the Postal Service’s opening statement. Much of the omitted language is highly relevant:
What the evidence will show is that after his termination from the Post Office where he worked for a few months as a 19 year old he did not work full time again until he received a Masters Degree from New York University, the better part of a decade later.
The plaintiff never looked for work comparable to his work at the Postal Service, although work existed in the New York City area. He made no reasonable efforts to obtain full time employment at all, let alone comparable work, being sorting mail and delivering mail.
The evidence will show he never looked for a job that had anything to do with sorting mail or delivering mail.
One of our witnesses will be an economist who will present a statistical analysis showing that it’s virtually impossible that a person looking for work in the New York City area of this plaintiff’s asian [sic] work would be out of work for two years, let alone for seven, and that’s full time work.
In conclusion, our position is that this plaintiff has made no reasonable efforts to find any kind of full time employment, let alone, substantially similar employment. He has not mitigated his damages. He went to school full time for seven years, and that the Post Office should not pay him full salary while he was a full time student.
*1156(emphasis added). It is clear from this more complete excerpt of the Postal Service’s opening statement that the Postal Service’s argument had two elements: (1) Clarke did not seek comparable work, and (2) Clarke did not seek any full time work.
The Postal Service’s position at trial is not so unambiguous or so dispositive as to preclude a finding that the Postal Service would have settled the case prior to trial had it known the facts. A finding to that effect by a district court, even on the sparse record before us, would not be clearly erroneous.
Accordingly, I respectfully dissent from that part of the majority opinion that affirms the award of attorney’s fees and prejudgment interest and would remand the matter to the district court for further factual determinations. I concur in all other aspects of the majority opinion.