* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### SEP 24 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

ALAN G. MCCASKILL,

Plaintiff-Appellant,

v. TOGO D. WEST, JR., Secretary of the Army, Defendant-Appellee. No. 97-1032 (D.C. No. 95-Z-254) (D. Colo.)

ORDER AND JUDGMENT *

Before TACHA, MCKAY, and BALDOCK, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2- I. Plaintiff Alan McCaskill, a civilian employee of th e Department of the Army, brought this action under Title VII of the Ci vil Rights Act of 1964, 42 U.S.C. §§ 2000e-1 to -17, against defendant Togo West, Secretary of the Army. Plaintiff alleged various acts of racial dis crimination by his employer, the Fitzsimmons Army Medical Center Fire Department, in cluding a claim for discriminatory retaliation for filing complaints wi th the Equal Employment Opportunity Compliance and Complaints Review Agencyof the Department of the Army (the agency). Between February 1988 and October 1990, plaintiff f iled numerous formal complaints with the agency, alleging racial discrim ination and retaliation. Being dissatisfied with the proposed disposition of the a gency, plaintiff requested a hearing before an administrative judge (AJ). Follo wing a recommended disposition by the AJ, the agency issued its final decision, finding five acts of discrimination against plaintiff based on race, plu s a finding that, in retaliation for filing discrimination complaints, the fire chie f gave false and derogatory information to a prospective employer that plaintif f was under suspension pending investigation for theft. On five additional claims , the agency found no discrimination on the basis of plaintiff’s race. T he relief awarded plaintiff in the agency’s decision included a letter to the prospect ive employer, explaining that-3-

the information he had been given was false, but di d not include an award of back
pay. Plaintiff’s appeal to the Equal Employment Opportun ity Commission (EEOC) was dismissed initially because plaintiff ha d filed a civil action in district court. The EEOC granted plaintiff’s request for re instatement of his appeal and consideration of the merits based upon the districtcourt’s dismissal of his civil action without prejudice. In addition to the acts of discrimination found by the agency, the EEOC found that plaintiff had establish ed a prima facie case of discrimination on three additional claims. The EEO C’s ordered relief also did not include an award of back pay. Dissatisfied with the EEOC’s resolution, plaintiff filed suit in federal district court. In his complaint, plaintiff appeal ed the EEOC’s (1) denial of back pay, (2) failure to specify and define the discipli nary actions to be taken against certain Army personnel, (3) failure to specify and define the procedure for crediting plaintiff with sick and annual leave, (4) failure to order an effective training and monitoring procedure for the Fitzsimmo ns’ fire department, (5) failure to place plaintiff in the employment si tuation he would have enjoyed but for the discrimination, and (6) denial of compe nsatory damages under the Civil Rights Act of 1991.-4-

Defendant filed a motion to dismiss, to strike, andfor summary judgment. Defendant sought to strike plaintiff’s claim for co mpensatory damages and for a jury trial, and moved for summary judgment on plaintiff’s claims for additional remedies. Plaintiff filed a motion for partial sum mary judgment alleging entitlement to back pay as a matter of law. In a c ross-motion for partial summary judgment, defendant averred that plaintiff was not entitled to back pay for a private sector job he never received. Defendant ar gued that an award of this kind would be compensatory in nature and therefore, unav ailable under Title VII. Following a hearing on the parties’ various motions , the district court granted defendant’s motion to dismiss and strike, d ismissing plaintiff’s claims under the Civil Rights Act of 1991, and denying pla intiff’s request for back pay. The court also granted defendant’s cross motion forsummary judgment on the issue of back pay and denied plaintiff’s motion forpartial summary judgment. In its bench ruling on the motions, the district co urt stated agreement with defendant on the issue of back pay. The court dete rmined that the evidence was not clear that plaintiff was either the only or the strongest applicant for the private sector job. The court concluded that plain tiff was really requesting compensatory damages, which were not available unde r Title VII. Noting that defendant had obviously been wronged, and that some remedy was in order, the court requested that the respective attorneys attempt to fashion an acceptable-5-

remedy. The court suggested a final settlement con ference for the purpose of attempting to agree on appropriate remedies. Attempts at settlement were apparently unsuccessful . Following a two-day trial to the court, the court entered judgment inco rporating its oral findings of fact and conclusions of law. The court ordered defendant to implement various training, monitoring, and reporting procedures. Th e court ordered that plaintiff be given credit for lost sick and annual leave hours and be paid for 147 hours of leave without pay. Finally, the court entered a ju dgment in favor of plaintiff for $794.70, and ordered plaintiff to submit a motion a nd affidavit for attorney fees and a bill of costs. The only issue before this court on appeal is the d istrict court’s ruling, following the motions hearing, that plaintiff was n ot entitled to back pay. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

II. The remedial purpose of Title VII is to make plaint iffs whole for injuries they received due to unlawful employment discrimination. See Albemarle Paper Co. v. Moody , 422 U.S. 405, 418 (1975). Title VII clearly stat es the equitable remedies available to plaintiff. If the court finds that the respondent has intentio nally engaged in or is intentionally engaging in an unlawful employmentpractice charged1 Plaintiff does not appeal the district court’s dete rmination that the

provisions for compensatory damages allowable in th e Civil Rights Act of 1991 cannot be retroactively applied here. See Landgraf v. USI Film Prods. , 511 U.S. 244, 247 (1994) (holding that the compensatory dama ges provisions in the 1991 Civil Rights Act do not apply to cases filed before its effective date), accord Berry v. Stevinson Chevrolet , 74 F.3d 980, 988 (1996). -6- in the complaint, the court may enjoin the responde nt from engaging in such unlawful employment practice, and order suc h affirmative action as may be appropriate, which may include, bu t is not limited to, reinstatement or hiring of employees, with or w ithout back pay (payable by the employer, employment agency, or lab or organization, as the case may be, responsible for the unlawful employment practice), or any other equitable relief as the cou rt deems appropriate. Back pay liability shall not accrue f rom a date more than two years prior to the filing of a charge with the Commission. 42 U.S.C. § 2000e-5(g). 1 The Supreme Court has held that back pay is equit able in nature, and is an integral component of the Titl e VII scheme. Albemarle , 422 U.S. at 415-18. While the court’s decision whe ther to award back pay is discretionary, “its judgment is to be guided by sou nd legal principles,” see id. at 416 (quotation omitted), and its “decision must . . . be measured against the purposes which inform Title VII,” id. at 417. “[G]iven a finding of unlawful discrimination, backpay should be denied only for reasons which, if applied generally, wouldnot frustrate the central statutory purposes of eradicating discrimination . . . .” Id. at 421. Here, the district court concluded that a back pay award to p laintiff, who was at the time still employed by defendant, for the loss of a priv ate sector job he applied for and-7-

did not get, possibly due to a tainted reference, w ould be in the nature of impermissible compensatory damages. We agree. In Berry v. Stevinson Chevrolet , 74 F.3d 980, 987-89 (1996), this court reversed an award of compensatory damages to a plai ntiff following a finding of retaliation in the form of malicious prosecution. We acknowledged that, while not as direct, retaliatory prosecution, like “provi ding a tainted employment reference,” adversely affects a plaintiff’s “future employment prospects.” Id. at 986. Similar to the situation here, in Berry , the discriminatory acts took place prior to the 1991 amendments to the Civil Rights Ac t, and the traditional Title VII remedies of restatement and back pay were not avail able. See id. at 988. In reversing the plaintiff’s compensatory damages awar d, we rejected the district court’s rationale based on Franklin v. Gwinnett Cou nty Pub. Sch. , 503 U.S. 60, 66 (1992), that the federal court could fashion any av ailable remedy to make a injured plaintiff whole. See Berry , 74 F.3d at 988. The rationale in Berry , is applicable here. The district court awarded plaintiff a panoply of r emedies within the Title VII remedial scheme. While recognizing that the av ailable statutory remedies do not compensate plaintiff as fully as he would wish, we agree with the district court that it cannot disguise compensatory damages in the cloak of back pay in order to compensate plaintiff further. Therefore, we determine no clear error or-8-

abuse of discretion in the district court’s decisio n to deny back pay “in light of the circumstances peculiar to the case.” See Albemarle , 422 U.S. at 424. The judgment of the United States District Court fo r the District of Colorado is AFFIRMED.

Entered for the Court

Bobby R. Baldock Circuit Judge