### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT 08/31/99 THOMAS K. KAHN CLERK 

### CORRECTED OPINION PUBLISH IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

No. 98-6174 D. C. Docket No. CV 96-WI-1050-N

MARTHA NANCE, Plaintiff-AppellantCross-Appellee,

versus MAXWELL FEDERAL CREDIT UNION (MAX), THE MEMBERS OF THE BOARD OF DIRECTORS OF MAX, et al., Defendants-AppelleesCross-Appellants.

No. 98-6282 D. C. Docket No. CV 96-WI-1050-N MARTHA NANCE, Plaintiff-Appellee,2 versus MAXWELL FEDERAL CREDIT UNION (MAX), Defendant-Appellant.

Appeals from the United States District Court for the Middle District of Alabama (August 31, 1999)
Before TJOFLAT, DUBINA and HULL, Circuit Judges. TJOFLAT, Circuit Judge:
The plaintiff in this age discri mination case has succeeded in proving discrimination, but has failed to prove inju ry. Consequently, the district court’s awards of back pay, front pay, a nd attorneys’ fees must be vacated.

I. Martha Nance was a branch manager ata branch of the Maxwell Federal Credit Union (“Maxwell”). On A ugust 23, 1995, Nance met with Wayne Blackwell, Maxwell’s vice president of human resources. Blackwell informed Nance that, as a result of her unsatisf actory performance, Maxwell was no longer willing to employ her as a branch manage r. Blackwell then presented Nance with1 For the remainder of August a nd throughout September, Nance was considered to be on administrative leave. During October and November, she was considered to be on paid vacation (and thereby exhausted her accumulated supply of vacation benefits). 3 two options: (1) accept a demotion, including a reduction in salary, or (2) resign and receive severance pay. The following day (August 24), Nance took a leave of absence from Maxwell. She never returned. She recei ved full salary and benefits through the end of November. 1 Beginning on December 1, and continuing indefinitely, she was classified as being on an unpaid l eave of absence. She never communicated any intention of accepting either of th e options presented to her by Maxwell. Meanwhile, Maxwell changed its mind and decided that it wanted Nance to remain a branch manager. On October 18, Maxwell withdrew “options I and II” and asked Nance to return to her former position as soon as possible, with the same salary and benefits package as when she le ft. This offer was repeatedly reiterated until January 15, 1996, at which time Ma xwell, still having received no response from Nance, hired another individual to fill Nance’s position. Maxwell informed Nance, however, that it considered her to be on an unpaid leave of absence, and that if she ever wished to return to work for Maxwell, she would be placed in a comparable position to the one she occupied when she left.2 Nance’s complaint also sought injunctive and declaratory relief. Subsequent to the filing of the compla int, however, Nance did not pursue these forms of relief. Consequently, we consid er them abandoned, and treat this action as an action solely for back pay, fr ont pay, and attorneys’ fees. Cf. Road Sprinkler Fitters Local Union No. 669 v. Independent Sprinkler Corp. , 10 F.3d 1563, 1568 (11th Cir. 1994) (affirming district court’s holding that plaintiff abandoned a claim that was raised in the complaint but ignored in all subsequent filings). 4 On June 28, 1996, Nance filed suit against Maxwell in the United States District Court for the Middle District of Alabama. In her complaint, she alleged, inter alia , that Maxwell discriminated against he r on the basis of her age (63 at the time of trial), in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-34 (1994). Nan ce also alleged that Maxwell was liable for a conspiracy among certain of its employees to violate the ADEA, and on this basis included a count of conspiracy under Alabama law. She sought back pay covering the time from August 24 (when she le ft work) until the date of trial, front pay covering the time from the date of tria l until her anticipated retirement (at age 70), and attorneys’ fees. 2 The district court sua sponte dismissed the conspiracy claim before trial. The ADEA claim wa s tried before a jury, which, through a special verdict form, found that Maxwell had discriminated against Nance on the basis of her age. The court awarded Nance back pay, front pay, and attorneys’3 The award consisted of $69,945.48 in back pay (which was doubled to $139,890.96 based on the jury’s findi ng of willfulness, see generally Ramsey v. Chrysler First, Inc. , 861 F.2d 1541, 1544 (11th Cir. 1988)), $76,304.16 in front pay, and $33,750 in attorneys’ fees.

4 The motion was made at the close of Nance’s case (prior to Maxwell’s case and the submission of the case to the ju ry), and renewed after the verdict was rendered. See Fed. R. Civ. P. 50(a), (b). 5 fees, in the sum of $249,945.12. 3 The district court denied Maxwell’s post-trial motion for judgment as a matter of law. 4 Both parties appeal.

II. Maxwell appeals the denial of its motion for judgment as a matter of law. It contends that no adverse employment action was taken against Nance, and therefore that Nance has no claim under th e ADEA. Alternatively, Maxwell argues that Nance was unable to show any injury , and therefore as a matter of law is not entitled to back pay or front pay. We address these contentions in order.

A. The ADEA prohibits discrimination on the basis of age “against any individual with respect to his compensa tion, terms, conditions, or privileges of employment.” 29 U.S.C. § 623(a)(1). Both “Option I” (demotion) and “Option II”6 (resignation) offered to Nance on August 23 would have constituted a change in respect to Nance’s terms of employment. Neither option, however, was ultimately chosen by Nance. Instead, she took a fu lly-paid leave of absence, during which time Maxwell withdrew both options and in formed her that she would be allowed to remain in her present position. C onsequently, argues Ma xwell, no adverse employment action was ever taken against Nance; she therefore has no claim under the ADEA. This contention is logically compe lling and would be worthy of detailed discussion were it not foreclosed by Supreme Court precedent. In Chardon v. Fernandez , 454 U.S. 6, 102 S.Ct. 28, 70 L.Ed.2d 6 (1981), the plaintiffs alleged that they were discharged on the basis of their political affiliation. The defendants responded by arguing that the statute of limitations had run on the plaintiffs’ claims. The Court, addressing the statut e of limitations defense, held that the statute of limitations in an employment discrimination suit begins to run at the time the relevant employment decision is made, not at the time that the consequences of that decision are realized. Thus, in Chardon , the Court held that the statute of limitations began to run when the defendants made the termination decision and notified the plaintiffs of that decision, not when the plaintiffs were actually terminated (approximately one month after the decision). The Court reasoned that5 The jury found that Maxwell’s decision was based on Nance’s age; this finding is not challenged on appeal. We therefore accept it as true.

6 Maxwell argues that Supreme Court precedent regarding when the statute of limitations begins to run on a claim should not be controlling in regard to whether an adverse employment action has occurred. We disagree. First, as shown above, the Court’s reasoning is e qually applicable to both questions. Second, because of the Court’s precedent in regard to the statute of limitations, adopting Maxwell’s argument regarding wh at constitutes an adverse employment action would leave many discrimination victims without a cause of action. For instance, if an employer notifies an empl oyee that he will be discharged in two years because of his race, the employee is without a cause of action – he cannot sue after receiving the letter, because no a dverse employment acti on has been taken, and he cannot sue after being terminated, because the statute of limitations has run. 7 a violation of employment discrimination law occurs not when the employee is, for instance, terminated, but when a decision to terminate the employee is made on the basis of a protected personal characteristic. See id. at 8, 102 S.Ct. at 29. Thus, returning to the present case, Maxwell violated the ADEA when it decided to either demote or discharge Nance on the basis of her age. 5 The fact that Maxwell later changed its mind did not re medy the violation. Maxwell’s argument that no adverse employment ac tion occurred therefore fails. 6

B. We now turn to the question of inju ry. Nance claimed (and received), as compensation for Maxwell’s discrimination, back pay and front pay. Maxwell7 Maxwell’s argument, both in the district court and on appeal, was usually framed in terms of Nance’s “failure to mitigate” her damages. Upon closer inspection, however, Maxwell’s argument is not that it caused damages that Nance failed to mitigate, but rather thatit never caused any damages at all. Nance contends that Maxwell waived this argument by not objecting to the verdict form, which was silent on the topic of injury/mitigation. Given that the argument is a legal one, however, there was nothing for the jury to decide in this regard. Maxwell raised the issue in its motion for judgment as a matter of law; this was sufficient to preserve it on appeal. 8 argues that there was no factual basis for such an award, because any claimed loss of salary and benefits was not caused by Maxwell. 7 Although Maxwell had intended to change Nance’s status, in th e end, Maxwell never terminated Nance or in any way altered her term s and conditions of employment. Furthermore, in the interim period between Maxwell’s decision to demote or terminate Nance and its revocation of that decision, Nance conti nued to receive her customary salary and benefits. Consequently, Maxwell argues, any harm suffered by Nance in the form of lost wages and benefits is attributable to Nance’s own choices, not to any action taken by Maxwell. We find Maxwell’s reasoning on this poi nt persuasive. Maxwell’s decision to change the terms and conditions of Nance’s employment was never acted upon; therefore, that decision did not cause Nance any harm. The only way that Maxwell’s actions could be considered the cause of Nance’s lost salary and benefits would be if Maxwell’s actions constituted a constructive discharge – in8 This holding is not challenged on appeal.

9 Nance conceivably could be entitled to damages based on the vacation time that she lost prior to the withdrawal of options I and II. See supranote 1. Likewise, Nance possibly could have made a claim for nominal damages. Neither of these claims, however, were presented to the district court; we therefore do not consider them here. See Walker v. Anderson Elec. Connectors , 944 F.2d 841, 845 (11th Cir. 1991) (holding, in Title VII case, that nominal damages could not be awarded where they had not been requested at trial). 9 other words, if the mere presentation of “options I and II” made the thought of working at Maxwell so unpleasant that Na nce reasonably felt compelled to resign. See Hill v. Winn-Dixie Stores, Inc. , 934 F.2d 1518, 1527 (11th Cir. 1991). The district court, however, ruled as a matte r of law that Maxwell’s actions did not constitute a constructive discharge. 8 With this theory of recovery eliminated, there is no rational basis on which to conclude that Nance is entitled to back pay and front pay as a result of Maxwell’s actions. 9 Because Nance has shown no injury caused by Maxwell, we conclude that the district court’s award of back pay and front pay must be vacated.

III. Nance appeals the dismissal of her cons piracy claim. The theory behind the claim was that Maxwell was vicariously liable (based on respondeat superior ) for a conspiracy among certain individuals with in the organization to commit an ADEA10 violation against Nance. See generallyLawler Mobile Homes, Inc. v. Tarver , 492 So.2d 297, 306 (Ala. 1986) (stating that a corporation may be held liable for damages caused by a conspiracy when two or more of the corporation’s agents were involved in the conspiracy). Nan ce’s claim initially was made against both Maxwell and the relevant individuals with in Maxwell. On summary judgment, the district court dismissed the claim against the individuals on the ground that liability under the ADEA is limited to “employers”; i ndividuals cannot be held liable. The district court allowed the claim against Maxwell to stand. At the beginning of the trial, however, the district court also dismissed the conspiracy claim against Maxwell. This latter dismissal is the subject of Nance’s appeal. Civil conspiracy is not an independentcause of action; there must be an underlying wrong on which the conspiracy claim is based. See Allied Supply Co. v. Brown , 585 So.2d 33, 36 (Ala. 1991). The allegation of a conspiracy serves merely to expand liability for the unde rlying wrong to persons who were not directly involved in the wrongful actions. See Beck v. Prupis , 162 F.3d 1090, 1099 & n.18 (11th Cir. 1998), cert. granted , – U.S. –, 119 S.Ct. 2046, – L.Ed.2d – (1999). In the present case, the underlying wrong is a violation of the ADEA. Violations of the ADEA, however, are governed by a complex statutory scheme –11 for instance, liability is limited to “empl oyers,” punitive damages are capped, and a claim must be filed with the Equal Employment Opportunity Commission before a private lawsuit may be brought. Allowi ng a state-law conspiracy claim in an ADEA case would permit plaintiffs to make an “end run” around this federal statutory structure for age discrimination suits. Such evasion would surely frustrate congressional intent. We theref ore hold that the enforcement of rights secured through the ADEA must be pursuedin the manner specified in the ADEA, not through alternative state-law mechanisms. Cf. Great Am. Fed. Sav. & Loan Ass’n v. Novotny , 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979) (holding that a federal conspiracy statute may not be used to remedy a violation of Title VII). Consequently, we affirm the di smissal of Nance’s conspiracy claim. Nance also appeals the amount of atto rneys’ fees awarded her (contending that the award was too low), while Maxwell cross-appeals (contending that no attorneys’ fees should have been awarde d). Attorneys’ fees are appropriately awarded to a prevailing plaintiff in an ADEA suit. See Ramsey v. Chrysler First, Inc. , 861 F.2d 1541, 1544 (11th Cir. 1988). To qualify as “prevailing,” a plaintiff must obtain an enforceable judgment against the defendant. See Farrar v. Hobby ,10 Although Farrar was decided under 42 U.S.C. § 1988 (1994) (dealing with attorneys’ fees in civil rights actions) rather than 29 U.S.C. § 626(b) (dealing with attorneys’ fees in ADEA actions), the tw o bodies of law are generally considered interchangeable. See Heiar v. Crawford County, Wis. , 746 F.2d 1190, 1203 (7th Cir. 1984). 12 506 U.S. 103, 111, 113 S.Ct. 566, 573, 121 L.Ed.2d 494 (1992). 10 Because we have vacated the plaintiff’s damages awar d, there is nothing in the judgment that can be enforced. See Tunison v. Continental Airlines Corp. , 162 F.3d 1187, 1190 (D.C. Cir. 1998) (“[A] judgment with no damages at all is not an ‘enforceable judgment’ – there is simply nothing to enfo rce.”) We therefore vacate the award of attorneys’ fees.

IV. For the foregoing reasons, the portions of the district court’s judgments awarding Nance back pay, front pay, a nd attorneys’ fees are VACATED. The district court’s dismissal of Nance’s c onspiracy claim is AFFIRMED. The case is REMANDED to the district court for furt her proceedings consistent with this opinion. SO ORDERED.