                 United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                               ___________

                               No. 01-2413
                               No. 01-2551
                               ___________

                                   *
Larry T. Tadlock,                  *
                                   *
      Appellee/Cross-Appellant,    *
                                   *    Appeal from the United States
      v.                           *    District Court for the
                                   *    Eastern District of Arkansas.
Donald E. Powell, Chairman,        *
Federal Deposit Insurance          *
Corporation,                       *
                                   *
      Appellant/Cross-Appellee.    *
                                   *
                                ___________

                          Submitted: March 14, 2002

                          Filed:     May 30, 2002
                                ___________

Before McMILLIAN, HEANEY, and RILEY, Circuit Judges.
                           ___________
RILEY, Circuit Judge.

      Donald E. Powell,1 Chairman of the Federal Deposit Insurance Corporation
(FDIC), appeals from a bench trial verdict in favor of Larry Tadlock (Tadlock), an
FDIC employee, on his age discrimination claim. The district court2 entered final
judgment, awarding Tadlock back pay and reinstatement, but denying him
prejudgment interest.

       On appeal, the FDIC argues the district court clearly erred in finding age
discrimination and constructive discharge. Tadlock cross appeals, contending the
district court abused its discretion in ordering reinstatement, in finding it lacked
jurisdiction to subpoena a party to trial, and in interpreting Rule 45 of the Federal
Rules of Civil Procedure. We affirm.

I.    BACKGROUND
      Larry Tadlock was a career employee with the FDIC. In 1967 at the age of
twenty-six, he began working for the FDIC in the Division of Supervision as an
Assistant Bank Examiner Trainee. While working in the Division of Supervision,
Tadlock received numerous promotions and was assigned to duty stations in
Tennessee and Mississippi.

     In 1986 the FDIC promoted Tadlock to a Grade 14 position of Field Office
Supervisor (FOS) in Little Rock, Arkansas. The Little Rock Field Office supervises




      1
      Donald E. Powell is substituted for Donna A. Tanoue, former Chairman of the
Federal Deposit Insurance Company, as appellant/cross-appellee in this action
pursuant to Fed. R. App. P. 43(c)(2).
      2
       The Honorable Susan Webber Wright, Chief Judge, United States District
Court for the Eastern District of Arkansas.
                                         2
the bank examination process and oversees Arkansas banks in the Memphis region.3
As a FOS, Tadlock was a first-line supervisor of twenty-five bank examiners and
support personnel.

       In descending order, Tadlock had three line supervisors: Cottrell Webster
(Webster), the Regional Director; Stephen Race (Race), the Deputy Regional
Director; and Patricia Lenfert (Lenfert), the Assistant Regional Director. For nearly
thirty years, Tadlock received favorable performance evaluations from his line
supervisors and never received disciplinary action. In late 1996 and early 1997,
Tadlock experienced problems with two bank examiners under his supervision. One
of the bank examiners filed a grievance against Tadlock. Another employee
supervised by Tadlock also filed a grievance against him. Nicholas Ketcha (Ketcha),
Director of the Division of Supervision, forwarded the employee grievances against
Tadlock to the FDIC's Office of Inspector General (OIG) in Washington, D.C. The
OIG declined to investigate the grievances and remanded the matters to Ketcha for
resolution.

       On February 27, 1997, Webster notified Tadlock in writing that the FDIC was
detailing him for six weeks to the Memphis Regional Office to work in the position
of Acting Assistant Regional Director (AARD).4 According to Webster's
memorandum, the six-week detail was to commence on March 31, 1997, and end on
May 9, 1997. When Tadlock reported to the regional office on March 31, 1997, to
begin his detail, Webster, Race, and Lenfert summoned him to a three-hour meeting
in which they alleged Tadlock had exercised poor judgment, mistreated staff persons,
misinterpreted promotion policy, failed to follow instructions, and played solitaire on
an office computer. During the meeting Webster told Tadlock he had begun to

      3
       The Memphis region covers the states of Arkansas, Louisiana, Kentucky,
Mississippi, and Tennessee.
      4
          FOSs are routinely given six-week details in Memphis to serve as AARDs.
                                          3
question Tadlock's judgment commencing in December 1996. Tadlock's supervisors
also discussed numerous decisions Tadlock made during his tenure at the Little Rock
Field Office with which Webster, Race and Lenfert disagreed. Lenfert observed that
"in her 20 years of employment she ha[d] not seen or heard of a more discontented
field office as Little Rock." Afterwards, Lenfert wrote a memorandum memorializing
the meeting. Following the meeting Tadlock received no discipline for his alleged
misconduct.

       When Tadlock's detail in Memphis was completed, Webster converted
Tadlock's AARD position to Acting Case Manager (ACM). Webster told Tadlock he
would have the ACM detail in Memphis for six additional weeks while the OIG
completed its investigation of the allegations against him. Tadlock contested the
extension of his detail in Memphis by filing a grievance and twice appealing its
denial. After Tadlock completed his second detail, Webster met again with Tadlock
and said he had not decided whether to return Tadlock to his FOS position in Little
Rock. Webster told Tadlock he would make a decision within two weeks. Two
weeks later, Webster told Tadlock he was waiting to hear from Washington before
making a decision, although Webster knew the OIG had officially declined to
investigate employee grievances filed against Tadlock. Weeks later, Tadlock inquired
again, and Webster told him he hoped to know something by Labor Day. After Labor
Day passed, Tadlock inquired again, and Webster responded that he had no
information.

      In September 1997, the FOSs met in Memphis. During the meeting, Webster
declared the high percentage of higher-grade white males in the forty-five to fifty-five
age group presented a problem to the FDIC with respect to attracting minority
employees. Reference was made that the FDIC employees should reflect the "Face
of America." On October 3, 1997, Tadlock filed an Equal Employment Opportunity
(EEO) complaint alleging race and sex discrimination based on the indefinite



                                           4
extension of his detail in the Memphis Regional Office and harassment by
management in retaliation for unsubstantiated complaints filed by coworkers.

       By letter dated December 12, 1997, Webster informed Tadlock that he no
longer held the FOS position in Little Rock. Instead, Webster's letter informed
Tadlock that he was being permanently reassigned to the position of Case Manager
(CM), Grade 14, in the Memphis Regional Office. Webster's letter offered Tadlock
three choices: accept the directed reassignment, retire, or be involuntarily separated
from service.

        At the time Tadlock received the letter, he was fifty-six years old. Twice
before, Tadlock had declined management requests to transfer voluntarily to the CM
position. The directed reassignment to the CM position stripped Tadlock of his job
title and supervisory responsibilities. On February 6, 1998, Tadlock filed a second
EEO complaint alleging race and sex discrimination based on his involuntary
reassignment and a low performance appraisal. In his second EEO complaint,
Tadlock sought reinstatement to the FOS position in the Little Rock Field Office.

      Because Tadlock believed his reassignment was a demotion and an attempt by
management to force him to resign, he declined the reassignment and retired effective
February 14, 1998. In April 1998 Webster selected a male under age forty to replace
Tadlock as the FOS in the Little Rock Field Office. In May 1998 Tadlock filed a
third EEO complaint alleging age discrimination on the basis of constructive
discharge and requesting reinstatement to the FOS position in the Little Rock Field
Office.

       The case was tried to the bench. The district court found the FDIC had
discriminated against Tadlock on the basis of age by demoting and constructively
discharging him. However, the district court concluded Tadlock had not proved his
retaliation claim. The court ordered the FDIC to reinstate Tadlock either to the FOS

                                          5
position or to a comparable position in the Little Rock Field Office. The district court
also ordered back pay. The court did not award prejudgment interest, concluding the
United States was immune from paying prejudgment interest.

II.     DISCUSSION
       A.     Standard of Review
       In reviewing a district court's order entering judgment after a bench trial, we
review the court's factual findings for clear error and its legal conclusions de novo.
Fed. R. Civ. P. 52(a); Speer v. City of Wynne, Ark., 276 F.3d 980, 984-85 (8th Cir.
2002). "Under this standard, we overturn a factual finding only if it is not supported
by substantial evidence in the record, if the finding is based on an erroneous view of
the law, or if we are left with the definite and firm conviction that an error has been
made." Estate of Davis v. Delo, 115 F.3d 1388, 1393-94 (8th Cir. 1997). We give
due regard to the opportunity of the district court to judge the credibility of the
witnesses. Id.; Fed. R. Civ. P. 52(a).

       A factual finding supported by substantial evidence on the record is not clearly
erroneous. Akeyo v. O'Hanlon, 75 F.3d 370, 373 (8th Cir. 1996). A district court's
choice between two permissible views of evidence cannot be clearly erroneous.
Estate of Davis, 115 F.3d at 1393-94; Hylton v. John Deere Co., 802 F.2d 1011, 1014
(8th Cir. 1986). When we review a judgment entered on a verdict favorable to a
plaintiff in an age discrimination case, the McDonnell Douglas presumptions fade
away, and we must decide whether the record supports the ultimate findings of
discrimination. Rademaker v. Nebraska, 906 F.2d 1309, 1311 (8th Cir. 1990).

      B.    Adverse Employment Action
      To establish a prima facie case of discrimination under the Age Discrimination
in Employment Act of 1967, 29 U.S.C. § 621 et seq., Tadlock must show: (1) he is
a member of a protected age group; (2) he was performing his job at a level that met
his employer's legitimate expectations; (3) he suffered an adverse employment action;

                                           6
and (4) he was replaced by a younger person. Fisher v. Pharmacia & Upjohn, 225
F.3d 915, 919 (8th Cir. 2000). Tadlock was a member of a protected age group, was
performing his job satisfactorily and was replaced by a younger person.

             1. Demotion
       The FDIC argues the district court erred in finding age discrimination in the
absence of sufficient evidence showing Tadlock suffered an adverse employment
action. In reassigning Tadlock to a non-supervisory CM position, the FDIC claims
Tadlock suffered no materially adverse change in working conditions. Because
Tadlock maintained the same grade, salary, and benefits, the FDIC contends his
directed reassignment did not constitute a demotion.

       In Fisher, we held a transfer constitutes an adverse employment action "when
the transfer results in a significant change in working conditions or a diminution in
the transferred employee's title, salary or benefits." Id. See also Zotos v. Lindbergh
Sch. Dist., 121 F.3d 356, 362 (8th Cir. 1997). Although the district court found the
CM position was the same grade as the FOS position, it found the evidence also
established the CM position does not entail supervising employees and is a less
prestigious position as evidenced by the fact that the Memphis Regional Office has
more CM positions than FOS positions. Webster's trial testimony established that
within the same grade Webster regarded some positions as promotions and other
positions as demotions. After reviewing the record, we conclude the district court's
findings of adverse action are supported by substantial evidence and are not clearly
erroneous.

            2. Constructive Discharge
      Constructive discharge occurs "when an employer intentionally creates a work
environment so intolerable as to compel a reasonable employee to quit, and the
employee does in fact quit." Tork v. St. Luke's Hosp., 181 F.3d 918, 919 (8th Cir.
1999). "The conduct complained of must have been severe or pervasive enough to

                                          7
create an objectively hostile or abusive work environment, and additionally the
plaintiff must subjectively perceive the environment to be abusive." Johnson v.
Runyon, 137 F.3d 1081, 1083 (8th Cir. 1998) (internal quotations omitted). A
plaintiff may satisfy this intent requirement by showing the intolerable situation
created by the employer was such that the employer could reasonably foresee that the
employee would quit. Tatom v. Georgia-Pacific Corp., 228 F.3d 926, 932 (8th Cir.
2000).

       The FDIC contends the district court erred in finding Tadlock was
constructively discharged from his employment. The FDIC argues the trial record is
devoid of evidence that the nine months Tadlock waited in Memphis for the FDIC to
make a decision presented such an intolerable working situation that a reasonable
person would have had no choice but to quit. In analyzing the trial evidence
establishing constructive discharge, the district court found:

      that, from March 31, 1997, when Tadlock was summoned to the meeting
      in which he was given a list of questionable concerns, until the time in
      December when he was told of the permanent reassignment, Tadlock
      repeatedly communicated to Webster his desire to return to Little Rock
      and repeatedly asked when he might return; that Webster knew that
      Tadlock was anxious; that Webster knew he would never permit
      Tadlock to return; that Ketcha asked Tadlock voluntarily to take the case
      manager job on a permanent basis; that Tadlock refused to do so; and
      that it was reasonably foreseeable that the permanent transfer to the case
      manager position would result in Tadlock's leaving the agency.

Applying an objective standard to these factual findings, the district court further
found "a longtime supervisory employee, who was strung along like this and then told
he could not return to his position, would find this intolerable." Having reviewed the
trial record, we find substantial evidence supporting the court's finding of
constructive discharge and thus find no clear error.



                                          8
      C.     Reinstatement
      On his cross appeal, Tadlock argues the district court abused its discretion by
ordering reinstatement to a comparable position in lieu of front pay. Tadlock
contends reinstatement was not an appropriate remedy because of the unavailability
of the FOS position, Webster's absence of trust and confidence in Tadlock, and
antagonism between the parties.

     Reinstatement is the typical remedy for unlawful discrimination in
employment. McIntosh v. Jones Truck Lines, Inc., 767 F.2d 433, 435 (8th Cir. 1985).
However, a court may, in limited instances, award front pay in lieu of reinstatement.
Cox v. Dubuque Bank & Trust Co., 163 F.3d 492, 498 (8th Cir. 1998). Before
awarding front pay, a district court must find "the animosity is so extreme that it
makes an amicable and productive work relationship impossible." Id.

        In considering whether reinstatement was a viable remedy, the district court
specifically found that "while plaintiff was discharged illegally, defendant's actions
in this case evidenced poor judgment more than hostility or animus toward plaintiff."
Our review of the record reflects no evidence of extreme animosity that would
preclude "an amicable and productive work relationship." See id. Moreover, we note
Tadlock requested reinstatement in his EEO charges, his complaint, and a post-trial
motion. Accordingly, we conclude the district court did not abuse its discretion in
awarding Tadlock the remedy he requested.

       When the district court entered its reinstatement order, Tadlock's FOS position
was not open. To comply with the court's order to reinstate Tadlock to a comparable
position, the FDIC created a Grade 14 Supervisory Examiner position. Shortly after
the judgment was entered, Tadlock's former FOS position became vacant, and
Tadlock filed a Rule 59(e) motion to amend judgment. The district court denied the
motion as untimely. Thereafter, Tadlock filed a Rule 60(b) motion to amend
judgment, requesting the court to reinstate him to the FOS position. Although the

                                          9
district judge indicated she was inclined to grant Tadlock's motion, the parties had
filed their notices of appeal and cross appeal, and the district court was without
jurisdiction to modify its judgment.

       On appeal, we recognize the need in selected cases to modify the relief granted
to permit the prevailing party the fullest relief appropriate. See King v. Staley, 849
F.2d 1143, 1144 (8th Cir. 1988). "A district court is obligated to grant a plaintiff who
has been discriminated against on account of his [age] . . . the most complete relief
possible." Briseno v. Cent. Tech. Cmty. Coll. Area, 739 F.2d 344, 347 (8th Cir.
1984). Although tailoring the relief lies within the equitable discretion of the trial
court, we may modify the trial court's orders "to ensure that the fullest relief
appropriate is afforded a deserving plaintiff." Maschka v. Genuine Parts Co., 122
F.3d 566, 572-73 (8th Cir. 1997); (citing Ingram v. Missouri Pac. R.R. Co., 897 F.2d
1450, 1456 (8th Cir. 1990)). Consequently, we affirm the judgment but remand the
case to the district court to permit reconsideration of the appropriate reinstatement
award, including the possibility of modifying the judgment to reinstate Tadlock to his
former FOS position in the Little Rock Field Office.

      D.     Rule 45
      Tadlock's final argument is that the district court erred in quashing his
subpoena duces tecum to Donna A. Tanoue, former Chairman of the FDIC, and, in
doing so, misinterpreted Rule 45 of the Federal Rules of Civil Procedure. Because
we affirm the district court's finding of age discrimination, we find it unnecessary to
address these alleged errors.

III.  CONCLUSION
      For the foregoing reasons, we affirm the district court and remand the case for
further proceedings consistent with this opinion.




                                          10
A true copy.

      Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT




                             11
