840 F.2d 1108 (3rd Cir. 1988), 86-3707, Gunby v. Pennsylvania Elec. Co.

Docket Nº:Charles GUNBY, Jr., Appellant in 86-3707,
Citation:840 F.2d 1108
Case Date:February 04, 1988
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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840 F.2d 1108 (3rd Cir. 1988)

Charles GUNBY, Jr., Appellant in 86-3707,



Nos. 86-3707, 86-3723.

United States Court of Appeals, Third Circuit

February 4, 1988

Argued July 6, 1987.

Rehearing and Rehearing In Banc Denied March 4, 1988.

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Stanley M. Stein (argued), Feldstein Grinberg Stein & McKee, Pittsburgh, Pa., for appellant in No. 86-3707.

Anthony De Sabato (argued), Charles J. Bloom, L. Oliver Frey, Kleinbard, Bell & Brecker, Philadelphia, Pa., appellant in No. 86-3723.

Before HIGGINBOTHAM, BECKER, Circuit Judges, and BARRY, District Judge. [*]


BECKER, Circuit Judge.

These are appeals from a jury verdict in favor of the plaintiff Charles Gunby in a race discrimination in employment case brought under 42 U.S.C. Sec. 1981 and from the decree of the district court in a companion suit brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000 et seq. The jury awarded Gunby $22,000 in back pay and $15,000 for emotional distress against his employer Pennsylvania Electric Company ("Penelectric"), on account of its failure to promote Gunby to another position. The district court, 631 F.Supp. 782, determined that the jury verdict precluded its determination of the Title VII claim and enjoined Penelectric from further discrimination against Gunby because of his race. The court declined, however, to upgrade Gunby's grade level position or to grant him an equivalent equitable remedy. Penelectric challenges the sufficiency of evidence to support the jury's verdict on both liability and damages. Gunby, in his cross-appeal, challenges the adequacy of the equitable relief awarded by the district court's disposition of the Title VII claim.

As to the Sec. 1981 claim, we make three determinations. First, our review of the evidence persuades us that, although Penelectric mounted a strong defense, the jury heard sufficient evidence to have found by a preponderance of the evidence that Penelectric intentionally discriminated against Gunby. Second, we likewise conclude that the jury's back pay award must be sustained, because sufficient evidence existed for the jury reasonably to have determined the salary that Gunby would have received had Penelectric granted him the promotion at issue. Third, because there is no specific evidence that Gunby suffered an adverse reaction to Penelectric's failure to promote him to the position at issue in this lawsuit, there is an insufficient basis to sustain the jury's award for emotional distress. We reject the notion that damages may be presumed in such cases, and the inference that Penelectric's passing Gunby over must have had an adverse affect will not suffice. Accordingly, we must set aside the award for emotional distress.

Finally, we conclude that the district court erred in refusing to order any effective remedy for Gunby under Title VII. The Title VII verdict in Gunby's favor required a "make whole" remedy and the

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district court's order, which merely directed Penelectric to cease discrimination against him on account of his race, provided no such remedy. Because of the record's inadequacy on the issue of the relationship between grade level position and salary under Penelectric's personnel structure, we concede that it would have been difficult to know just how to fashion a remedy. However, neither the lacuna in the record nor the district court's broad equitable discretion in such matters justifies the absence of a meaningful remedy. Hence we reverse and remand, not only for further findings and concomitant equitable relief but also for possible development of the record on this point. The judgment of the district court will therefore be affirmed in part and reversed in part, and the case will be remanded for further proceedings consistent with this opinion. 1


A. The Facts of Record

Gunby, who has a Bachelor of Arts degree in psychology from the University of Pittsburgh and a Master of Arts degree in industrial relations from St. Francis College, has been employed by Penelectric's personnel operation since October 1973. Throughout his career at Penelectric, Gunby has been promoted steadily. 2 Additionally, at least until October 1982, Gunby received above average job performance evaluations.

This lawsuit centers on Penelectric's failure, in December 1982, to promote Gunby, a black man, from his job as Supervisor--Division Personnel Services--Corporate to the position of Manager--Employment and Equal Employment Opportunity and Affirmative Action ("Manager--Employment/EEO/AA"). 3 The circumstances of Gunby's lateral transfer to the Supervisor--Division Personnel Services--Corporate job and of Penelectric's failure to promote him to the Manager job are the sinews of this appeal, and we will detail them here.

As Director of EEO/AA from 1976 to 1979, Gunby had the responsibility for directing Penelectric's EEO/AA program. Penelectric is a large company, hence this was an important responsibility. However, this position did not carry significant managerial responsibility or authority. Although his title changed in 1979 to EEO/AA-Manager, no change in job duties occurred. 4 As a result of conversations

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with Richard Gallatin, Penelectric's Director of Labor Relations, Gunby was advised that his position in EEO/AA work would probably not lead to a managerial-level job at Penelectric. Gunby therefore made attempts to obtain jobs in other personnel departments so as to broaden his experience in personnel administration and make himself more "promotable."

When the position of Supervisor--Division Personnel Services--Corporate in Altoona, Pennsylvania, was posted, Gunby applied. However, Gunby did not receive an interview, and the position was filled in August or September 1982, by Gary Burkholder, a white accountant, formerly of the System Personnel Department's Compensation and Benefits Section, Wage and Salary Group. Burkholder had performed services of calculating pay raises based upon performance appraisals, but had had no experience in administering personnel benefits or in dealing with the other aspects of personnel administration.

When the Altoona job was filled by Burkholder, Gunby approached Gallatin, stating that he thought Burkholder was not qualified for the job, that he (Gunby) had been treated unfairly, and that he intended to contest Burkholder's qualifications for the job. 5 Shortly after making this complaint, Gunby was advised that a similar job had been created for him as Supervisor--Division Personnel Services--Corporate in Johnstown. At the time that Gunby was advised of this new position, he was told that his decision was needed immediately, and he accepted.

Gunby had not, however, been told that Penelectric had created the grade level 20 position of Manager-Employment/EEO/AA at the same time. Simultaneously with the announcement of the existence of this new position, James R. Reesman, Penelectric's Vice-President of Human Resources, announced that it would be filled by Frank Hager, another white male accountant who had no experience in personnel administration or EEO/AA. Hager had worked at all times in the Accounting Department as an accountant. Prior to December 1982, he was a Senior Staff Accountant and prior to that had been Assistant to the Comptroller.

The new level 20 position subsumed all of the responsibilities of Gunby's previously held EEO/AA functions. Under Penelectric's procedures, because the job was a grade level 20 job, it did not have to be posted. Gunby, therefore, had no opportunity to apply for it. Penelectric maintains that Gunby was not given the job because he did not possess the qualifications of strong leadership and managerial qualities required.

According to Penelectric, the new position arose out of a two-stage reorganization of the Human Resources Department. The first phase was designed to create a personnel section for the corporate staff and to appoint a supervisor for that section. In doing so, Reesman consulted with Gallatin, Gunby's direct superior, and Oscar Zolbe, another senior Human Resources employee, to determine the best candidate for the new supervisor position. They agreed on Gunby, based on Gunby's background and his expressed desire to leave the EEO/AA area for more traditional personnel work. To deal with the technical demotion to grade 16 that would accompany the job, Reesman ordered that Gunby's pay not be reduced if Gunby accepted the position. The second phase of the reorganization was said to involve creation of several new positions and selection of persons to occupy them. The positions of Director of Personnel Services and Manager--Employment/EEO/AA were added to the Human Resources Department, the latter being the focus of this appeal.

Reesman made the decision to give the Manager--Employment/EEO/AA job to Hager. 6 According to Penelectric, Reesman

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believed that Hager possessed managerial ability, was results-oriented, was aggressive and could get the job done, and also that Hager "had shown a deep commitment to EEO and Affirmative Action." Hager, on the other hand, was "shocked" to get the job, and was not expecting to get a job in the employment area.

The record as to Hager's background is somewhat opaque, at least with respect to managerial responsibilities. 7 Hager was a senior staff accountant in which position he apparently had the duty of "administration" of the 185-person accounting department. J.A. at 155. Although these duties were described as having some relationship to personnel, Hager testified that he had performed these duties when he was assistant to the Comptroller, so...

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