# Gurmankin v. Costanzo

> Court of Appeals for the Third Circuit · June 30, 1980 · 626 F.2d 1115

URL: https://www.frixlaw.com/law-library/cases/8911892

## Case

- **Full name:** Judith GURMANKIN, on behalf of herself and all other persons similarly situated v. Matthew COSTANZO, Superintendent of the School District of Philadelphia Murray Bookbinder, Executive Director of Personnel and Labor Relations Martin K. Ferrier, Director of Professional Personnel and Board of Education of the School District of Philadelphia
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** June 30, 1980
- **Citations:** 626 F.2d 1115; 23 Fair Empl. Prac. Cas. (BNA) 301
- **Precedential status:** Published
- **Opinion:** Concurring in part by Garth
- **Judges:** Garth, Seitz, Sloviter
- **Cited by:** 60 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8911892

## How later opinions describe it (automated extraction)

- holding that unconstitutional policy resulting in refusal to hire required equitable remedies comparable to Title VII remedies, including back pay, and reasoning that “[tjhere is no distinction in the law of equitable remedies between suits brought under Title VII and suits br…
- noting that “[m]eaningful appellate review of the exercise of discretion requires consideration of the basis on which the trial court acted”

## Opinion text

GARTH, Circuit Judge,
dissenting in part and concurring in part:
I am obliged to dissent from the majority opinion insofar as the majority awards additional backpay to Ms. Gurmankin for the period 1970 to 1976. By so doing the majority has sought to import into a section 1983 constitutional cause of action, a congressionally mandated statutory presumption peculiar to Title VII actions. There being no precedent, historical consideration, or indeed any reason for constructing such an equation, I dissent.
However, the majority has also held that the district court properly exercised its discretion in denying Ms. Gurmankin tenure. In this respect, I wholeheartily concur with the majority, not only because of the majority’s reasoning, but more particularly because of the views expressed in my dissenting opinion in Kunda v. Muhlenberg College, 621 F.2d 532 (3d Cir. 1980).
If the only issue on which I differed from the majority was the proper exercise of the district court’s discretion in denying back-pay, there would be little point in any extended discussion. I would merely indicate, as I do in Part II of this dissent, that while I myself, were I sitting as a district court judge, might have found otherwise, I could not say that the district court judge who decided the question of backpay decided it incorrectly. My concern, however, is a much deeper one. In concluding that the district court abused its discretion, the majority has for all practical purposes held that the presumption in favor of backpay, which is a presumption to be applied only in Title VII cases and in age discrimination cases, must be applied as well in cases such as this one, which was brought and adjudicated solely under 42 U.S.C. § 1983 . The majority has so held by incorrectly attributing such a rule of law to an earlier appeal in this case and without citing any precedents that so hold.
Because such a holding is incorrect in my view and can have such a profoundly pernicious effect on future cases, I think it is important to meet this issue squarely. It is readily apparent from the majority’s opinion that once it has held that the presumption of backpay must be applied, the outcome of the case is preordained. Because I believe that the authorities upon which the majority relies are inapposite, and because I am convinced that neither reason nor logic dictates the result reached by the majority, I respectfully dissent.
I.
While I recognize that the narrow issue before the court is whether the district court judge abused his discretion, the more troubling issue, as I have indicated above, is whether we are bound to give effect to a presumption of backpay which has never been required in any section 1983 context. Since, as I have also indicated, I am satisfied even in the face of this presumption that the district court properly exercised its discretion in denying backpay for the period prior to March 1,1976, it is clear to me that the result reached by the district court was proper where no presumption of backpay exists. I therefore turn first to the overriding issue: whether the Title VII presumption of backpay is to be invoked in an action under section 1983 involving a handicapped (blind) teacher who had been denied employment in a public school system by reason of her handicap.
The majority, of course, denies equating Title VII and section 1983:
It is not necessary for us to assume a parity in remedy between Title VII cases and all cases brought under 42 U.S.C. § 1983 . It is sufficient to note that this *1127 case, presenting as it does discrimination in employment based on stereotyped notions of ability in violation of the constitutional imperative to be judged on an individualized basis . . . requires equitable remedies comparable to those appropriate in Title VII employment discrimination cases.
Majority op., supra, at 1121 (citation omitted). But this caveat cannot obscure the sweeping scope of the majority’s holding. Since the majority recognizes that the gravamen of every section 1983 cause of action is “discrimination . . . based on stereotyped notions,” it is evident that despite its disclaimer, the majority has extended the Title VII presumption of back-pay to all employment discrimination cases, including those where Title VII has utterly no application.
Albemarle Paper Co. v. Moody, 422 U.S. 405, 413-23 , 95 S.Ct. 2362, 2369, 2374 , 45 L.Ed.2d 280 (1975), and its progeny clearly reveal the origin of the Title VII presumption. Title VII was aimed at a specific evil in a particular context. Its narrow purpose was to eradicate discrimination in the workplace and make whole victims of such discrimination where the basis of the discrimination was illegal consideration of the factors of race, religion, sex, and alienage. While discrimination on the basis of disability may be every bit as onerous as discrimination with respect to race, religion, sex, and alienage, nevertheless, Congress did not, at any time relevant here, see fit to include the disabled within the protection of Title VII. The Supreme Court has read into Title VII a presumption of backpay in order to effectuate the congressional decision to tip the scales against employers who persist in creating the egregious economic problems to which Title VII was a response. I would have no trouble applying the same presumption of backpay to an employment discrimination claim whenever discrimination based on the same characteristics (race, religion, sex, and alienage) enumerated in Title VII was challenged, even if the claim was asserted not under Title VII for some reason but only under section 1983. Similarly, it makes sense to invoke this presumption, as this court has done, in the context of a later statute whose purpose parallels that of Title VII. See, e. g., Rodriquez v. Taylor, 569 F.2d 1231, 1237-38 (3d Cir. 1977) (Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 ). But I do not and cannot agree that in every section 1983 employment discrimination case, the traditional sound discretion of the district court to award retroactive relief, or not to award it, should be burdened by the imposition of a presumption of back-pay that is neither necessary nor justified by the legislative history of those enactments. The comprehensive post-Civil War civil rights legislation simply cannot be analogized to the Title VII and Age Discrimination in Employment statutes of the mid-Sixties, which specifically targeted the discrete evils enumerated in these latter statutes. Indeed, in no prior case have we or has the Supreme Court held the presumption of retroactive relief applicable in a general section 1983 context.
The majority misinterprets the language of the prior appeal in this case, Gurmankin v. Costanzo, 556 F.2d 184, 188 (3d Cir. 1977) (Gurmankin I). It is clear that we were there discussing the power of a district court to grant relief in an action brought under section 1983. That case does not equate section 1983 with Title VII for the purpose of applying a presumption of back-pay or in any context other than the power of a court to make equitable awards. This is amply borne out by the citation of Bell v. Hood, 327 U.S. 678 , 66 S.Ct. 773 , 90 L.Ed. 939 (1946), and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 , 91 S.Ct. 1999 , 29 L.Ed.2d 619 (1971), which concerned, respectively, the jurisdiction of the federal courts and the existence of a cause of action grounded directly on the fourth amendment for recovery of damages for unreasonable searches and seizures. Neither Bell nor Bivens limited or channeled the discretion of federal courts to award or not to award equitable relief. To bolster its argument, the majority places reliance on the Gurmankin I statement, which as I have stated, *1128 focused not on equating remedies but rather on the extent of a court’s power: “There is no distinction in the law of equitable remedies between suits brought under Title VII and suits brought in reliance on 42 U.S.C. § 1983 , or directly on the fourteenth amendment,” 556 F.2d at 188 , see Majority op., supra, at 1120. I suggest that the quoted sentence from Gurmankin I has been taken out of context by the majority, and the majority opinion has thus transformed an infelicitous choice of words into an erroneous rule of law.
The simplistic reasoning of the majority — noting the irony of holding that “relief for a constitutional violation stands on a lesser ground than relief for a violation of a statutory right,” id. at 1121 — similarly misses the mark. It does not derogate from the sanctity or value of a constitutional right to acknowledge the historical fact that Congress saw fit, but only in certain instances, to circumvent some of the traditional legal and equitable judicial doctrines by supplementing the constitutional right with statutory causes of action under which relief would be easier to obtain. Title VII, which applies only to employment discrimination based on race, religion, sex, and alienage classifications, falls within this category. It makes retroactive relief easier to obtain, through the use of a presumption, and it eases the plaintiff’s burden of proof by shifting the burden of producing evidence to the employer once a prima facie case has been presented, see, e. g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 , 93 S.Ct. 1817, 1824 , 36 L.Ed.2d 668 (1973). Nevertheless, in circumstances where Congress has not so acted, it is not for this court to assume Congress’ legislative role.
For this reason, I would decline to follow the example of the cases from other circuits cited by the majority, Majority op., supra, at 1121-1122, even if they unequivocally supported the extension of the presumption of backpay beyond Title VII, which none do. When the Fifth Circuit in Harkless v. Sweeny Independent School District, 427 F.2d 319 (5th Cir. 1970), cert. denied, 400 U.S. 991 , 91 S.Ct. 451 , 27 L.Ed.2d 439 (1971), held that backpay was an integral part of reinstatement relief under section 1983, its point was made not with reference to the appropriateness of an award of backpay, but rather by way of characterizing the claim as “equitable” so as to deny a jury trial. See 427 F.2d at 323-24 . Burt v. Board of Trustees, 521 F.2d 1201 (4th Cir. 1975) (per curiam); Ramsey v. Hopkins, 447 F.2d 128 (5th Cir. 1971) (citing Harkless), remanding per curiam 320 F.Supp. 477 (N.D.Ala.1970), and Vega v. Civil Service Commission, 385 F.Supp. 1376 (S.D.N.Y.1974), also involved discriminatory discharges rather than, as is the case here, arguably legitimate refusals to hire. The conclusion reached by cases like Harkless that backpay in wrongful discharge cases was an issue for the court to decide incident to the main equitable claim for reinstatement has been roundly criticized as flatly inconsistent with Dairy Queen, Inc. v. Wood, 369 U.S. 469 , 82 S.Ct. 894 , 8 L.Ed.2d 44 (1962). See, e. g., Rogers v. Loether, 467 F.2d 1110, 1121 (7th Cir. 1972), aff’d sub nom. Curtis v. Loether, 415 U.S. 189 , 196-97 & n. 13, 94 S.Ct. 1005, 1009-1010 , 39 L.Ed.2d 260 (1974) (explicitly declining to express any opinion on the Harkless rule); Leathers v. Martin County Board of Education, 65 F.R.D. 68, 69-70 (E.D.N.C.1974). Rogers in dictum proposed a restitution theory to justify characterization of the relief as equitable, but Leathers pointed out that:
[t]his theory could hardly hold up in most wrongful discharge cases, however, because usually the school board (or whoever the defendant is) would hire another teacher in the place of the wrongfully discharged teacher and would therefore have no gain or unjust enrichment. This would be true in the instant case, because the defendants in this case are paying the principal’s salary to someone, even if not the plaintiff. Furthermore, it is difficult to see how backpay could be characterized as an equitable remedy. Surely, it could be asked for as damages in an action in a court of law.
Id. at 70 .
In wrongful discharge cases, therefore, it is not at all surprising to find backpay fully *1129 justified on a theory of compensatory contract recovery. The determination of legal damages for breach of contract does not involve any exercise of discretion, and no presumption of backpay need ever be called into play. Indeed, the badly split Burt panel held that to the extent the district court proceeded in equity rather than at law to determine backpay, the district court would retain its discretion to refuse to award full relief, see 521 F.2d at 1203, 1206. It should be noted further that Harkless, Ramsey, and Vega were decided before the establishment of Albemarle’s presumption formulation, and thus do not speak in terms of a presumption of backpay. Shuman v. City of Philadelphia, 470 F.Supp. 449 (E.D.Pa.1979), also a discharge case, held merely that despite Monell v. Department of Social Services 436 U.S. 658 , 98 S.Ct. 2018 , 56 L.Ed.2d 611 (1978), a municipality did not always enjoy even qualified immunity from suit under section 1983.
The only case cited in the majority opinion which arguably supports the majority’s thesis is Bertot v. School District No. 1, 613 F.2d 245 (10th Cir. 1979) (en banc). But the Bertot opinion does not substantiate its bald statement that:
[ujnder § 1983, as under Title VII, there is “nothing on the face of the statute or in its legislative history that justifies the creation of drastic and categorical distinctions between those two remedies.”
Id. at 250 (quoting Albemarle, 422 U.S. at 423 , 95 S.Ct. at 2374 ). Indeed, the actual Bertot holding, as noted in Shuman , was that in a section 1983 wrongful discharge action against a school district, backpay was an equitable rather than a legal remedy and therefore was “not precluded by a good faith defense,” Bertot, 613 F.2d at 250 . This conclusion itself was criticized by two dissenters, who objected to the characterization of this type of compensatory relief as equitable, see id. at 255 (Barrett, J., dissenting, joined by Seth, C. J.).
It seems to me, that therefore, that aside from any other considerations the bridge erected between Title VII and section 1983 by the majority utilizing inapposite holdings and reasoning drawn from wrongful discharge cases is a frail structure at best. Gurmankin was never wrongfully discharged, and no contract of hers was ever breached. Rather, as everyone agrees, she was denied initial employment, which denial was ultimately held to have violated her constitutional rights. This distinction is highly significant, particularly when recognition is given to the Commonwealth’s policy as expressed by statute. Pa.Stat.Ann. tit. 24, § 21-2108 (Purdon 1962). That enactment permitted and still permits each school district to establish its own physical fitness qualifications as a precondition to employment, an option exercised by the school district in this case until 1974, when passage of the Rehabilitation Act of 1973 1 made clear that blind teachers could not for that reason alone be prohibited from teaching sighted students.
Thus, while Gurmankin I does no more than acknowledge the power in a district court judge to make equitable adjustments and to grant backpay as a matter of equity in section 1983 eases, see 556 F.2d at 188 , neither the precedents, historical considerations, the character of the discrimination charged, nor logic require that the same presumption of backpay which the Supreme Court has declared in Title VII eases, obtain in cases brought under section 1983.
n.
The district court here recognized the distinction which I have just addressed between Title VII cases and section 1983 cases. In so doing, it did not rely wholly on the fact that Gurmankin’s action was not brought as a Title VII action, as it could not have been. Rather, in exercising its discretion, it balanced the presumption in favor of backpay — which is an aspect peculiar to *1130 Title VII and which reflects the need to make plaintiffs whole for losses suffered— against the absence of the other factor that usually serves to justify backpay — a legislative desire to deter future violations and thus eradicate discrimination in the workplace. It also credited Gurmankin with the benefit of all doubts, going so far as to draw upon cases which applied a presumption of backpay 2 even though Gurmankin’s claim did not entitle her to that presumption.
The district court recognized that back-pay would be required to make Gurmankin whole. But just as the Supreme Court, in overturning an award of retroactive relief, found unusual circumstances in a Title VII context in City of Los Angeles, Department of Water & Power v. Manhart, 435 U.S. 702 , 98 S.Ct. 1370 , 55 L.Ed.2d 657 (1978), which circumstances rebutted the presumption of retroactive relief, resulting in its denial the district court found unusual circumstances in this case that tipped the scales of equity against an award of complete backpay. 3 In Manhart , the Supreme Court focused on the grave financial impact that would have been posed by granting such relief, and also focused on congressional solicitude for the insurance industry, which would have had to bear the consequent burden. In the instant case, the district court focused on the unique situation where discrimination against a blind teacher was found in an educational setting.
The district court found that the school district had not acted in bad faith. Pursuant to the state enabling statute to which I have previously referred, the school district had established guidelines that, among other things, prohibited blind teachers from teaching sighted students, on purported grounds of physical fitness. Given the then-prevalent attitudes toward the handicapped, this might not have seemed unfair or unreasonable, even if other states or other school districts reached the opposite conclusion, see Majority op., supra at 1123 n. 2. 4 In 1974, after section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 , went into effect, these school regulations predicated upon the Commonwealth’s enabling statute were rescinded, and Gurmankin was then permitted to take the qualifying examination, although the school district still did not actually offer her a job on acceptable terms.
Good faith alone, it is true, will not preclude a make-whole award of backpay, Albemarle, 422 U.S. at 422-23 , 95 S.Ct. at 2373-2374 ; Palmer v. General Mills, Inc., 600 F.2d 595, 598-99 (6th Cir. 1979), but it is a factor to be considered as the district court did in judging whether an award of backpay is needed for deterrence purposes. In the normal Title VII case, backpay is needed to deter discrimination based on “race, color, religion, sex, or national origin,” 42 U.S.C. § 2000e-2(a). Consideration of these factors in employment decisions has been clearly illegal since passage of Title VII in 1964. 5 An employer who bases an employment decision on any of these factors must be deemed on constructive no *1131 tice that his action may violate Title VII. The employer’s “good faith” belief that his particular practice was permitted and was not illegal, will not excuse him from making his victim whole for a discriminatory action that is subsequently held not to have been justified. By comparison, history in the instant case bears out the district court’s observation that no award of back-pay is now needed to deter others from discriminating against blind teachers. For with the passage of the Rehabilitation Act of 1973 and other statutes, 6 and with the concomitant dramatic change in societal attitudes toward the handicapped, it has become abundantly clear that the discriminatory practices found in this case no longer pose a problem of any dimension. Thus, in the exercise of its discretion, it was appropriate for the district court to limit its award of backpay to that period after the employer was first found in violation, a period for which the employer’s bad faith in not hiring Gurmankin is dispositive of equitable questions. 7
Owen v. City of Independence, 445 U.S. 622 , 100 S.Ct. 1398 , 63 L.Ed.2d 673 (1980), upon which the majority relies, does not dictate a result different from the one I advocate. It is true, as the majority opinion recites, that under Owen , a municipality no longer enjoys even a qualified immunity from civil rights liability based on the good faith of its officials. But the district court here did not grant immunity to the defendants, and immunity was never an issue. What the district court did do, was to look to the then-relevant Pennsylvania statutes and the conduct of the school district officials pursuant to those statutes. The court found that the officials acted in good faith in their initial refusal to hire a blind teacher. Relying on this factor, as well as on others, the district court exercised its equitable discretion and denied Gurmankin backpay to March 1, 1976. Owen , an unlawful discharge-immunity case, does not require or even suggest that in the present context of a refusal-to-hire case, good faith considerations are to be excised from a district court’s equitable discretionary determinations.
The district court granted Gurmankin substantially all of the relief which she sought. The school was ordered, as a primary matter, to hire her. 8 She was credited with building seniority and sick and personal leave for the full period of the discrimination. 9 The school district was required to make contributions to the pension and retirement fund on her behalf for the full period as well. 10 She was awarded backpay for the period from March 1, 1976 until the date of her employment. 11 The only relief which she was denied was tenure 12 , (a denial of relief affirmed unanimously by this court today), and backpay from September 1970 to March 1, 1976, 13 —the only issue on which the majority and I disagree.
The district court’s remedial order in this respect is far from being internally inconsistent as the majority opinion charges. Majority op., supra, at 1124 . The district court’s orders illustrate the essentially equitable nature of retroactive relief. The general precepts governing the award of such relief must be applied carefully on a case-by-case basis, and the relief granted in each case will be a mixture of some or all of the possible equitable remedies, as the district court in its sound discretion finds appropriate. The district court arrived at the altogether reasonable conclusion that for the *1132 period before the school district’s obligations were judicially determined, an award of backpay was not justified, considering the attendant circumstances.
Thus, I would find no error in the district court’s conclusion that this case does indeed present the circumstance where backpay has properly been denied “for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination,’’ Albemarle, 422 U.S. at 421 , 95 S.Ct. at 2373 (footnote omitted).
III.
Because I believe that the district court properly exercised its discretion, even if a presumption of backpay had to be met, which in a section 1983 context I do not believe is appropriate, I would affirm in full the district court’s order of February 5, 1980, which granted backpay only from March 1, 1976.
. Pub.L.No.93-112, 87 Stat. 357 (codified at 29 U.S.C. §§ 701-794 ). In particular, § 504 of the Act 29 U.S.C. § 794 , now prohibits “discrimination under any program or activity receiving Federal financial assistance.” As we indicated in Gurmankin I, 556 F.2d at 186 , because the Act was not promulgated until 1973, § 504 cannot support the relief sought by Gurmankin, whose claim predated § 504’s enactment.
. E. g., Albemarle, supra (presumption of back-pay in Title VII cases); Rodriguez v. Taylor, 569 F.2d at 1238 (same in cases brought under the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 ), cert. denied, 436 U.S. 913 , 98 S.Ct. 2254 , 56 L.Ed.2d 414 (1978); City of Los Angeles, Dep’t of Water & Power v. Manhart, 435 U.S. 702, 718-24 , 98 S.Ct. 1370, 1380-1383 , 55 L.Ed.2d 657 (1975) (instance of abuse of discretion in awarding backpay).
. It must be remembered that Gurmankin was awarded backpay from and after March 1, 1976. The backpay which she seeks here and which the district court denied is from September 1970 to March 1, 1976.
. Cf. Southeastern Community College v. Davis, 442 U.S. 397 , 99 S.Ct. 2361 , 60 L.Ed.2d 980 0979 ) (not illegal under 42 U.S.C. § 1983 or Rehabilitation Act of 1973, § 504, 29 U.S.C. § 794 , to exclude deaf person from nursing program on physical fitness grounds); Kober v. Westinghouse Elec. Corp., 480 F.2d 240 (3d Cir. 1973) (no abuse of discretion in denying back-pay where illegal discrimination resulted from good faith compliance with state law). Kober predated Albemarle, but the Albemarle Court explicitly refused to decide whether Kober survived Albemarle, the case which firmly established the presumption of backpay in Title VII cases, 422 U.S. at 423 n. 18, 95 S.Ct. at 2374 .
. Civil Rights Act of 1964, Pub.L.No.88-352, § 703(a), 78 Stat. 241 .
. See, e. g., Gurmankin I, 556 F.2d at 186 & n. 2 (citing state statutes).
. The district court also relied on the fact that the impact of an award of backpay would fall on innocent third parties — students and other teachers. Since any such impact was admittedly minimal, and in any event the impact was not described, I agree with the majority that this is not a proper basis for the district court’s discretion. Nevertheless, I find the decision supportable for the reasons outlined above.
. 411 F.Supp. 982 (E.D.Pa.1976), affd. 556 F.2d 184 (3d Cir. 1977).
. Orders of March 9, 1979, February 5, 1980.
. Id.
. Orders of July 12, 1978, February 5, 1980.
. Orders of March 9, 1979, February 5, 1980.
. Id.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8911892. Public record. Not legal advice.