Gurmankin v. Costanzo
| Decision Date | 25 April 1977 |
| Docket Number | Nos. 76-1730,76-2297 and 77-1273,No. 76-1730,No. 76-2297,No. 77-1273,76-1730,76-2297,77-1273,s. 76-1730 |
| Citation | 556 F.2d 184 |
| Parties | 14 Fair Empl.Prac.Cas. 1359, 14 Empl. Prac. Dec. P 7519, 1 A.D. Cases 20 Judith GURMANKIN, on behalf of herself and all other persons similarly situated v. Matthew COSTANZO, Superintendent of the School District of Philadelphia, et al. Appeal of SCHOOL DISTRICT OF PHILADELPHIA and Matthew W. Costanzo, inAppeal of Judith GURMANKIN, inSchool District of Philadelphia and Michael Marcase, Appellants in |
| Court | U.S. Court of Appeals — Third Circuit |
Jonathan M. Stein, Community Legal Services, Inc., Philadelphia, Pa., for Judith Gurmankin, et al.
Roberta L. Griffin Mason, Asst. Counsel, School Dist. of Philadelphia, Philadelphia, Pa., for School Dist. of Philadelphia and Matthew W. Costanzo.
Robert L. Burgdorf, Jr., David M. Simonson, Marcia Pearce Burgdorf, Baltimore, Md., for amici curiae.
Before FORMAN, GIBBONS and ROSENN, Circuit Judges.
In these appeals we review two injunctive orders entered by the district court in an action charging that the defendants, officials of the Philadelphia School District, discriminated against the plaintiff, Judith Gurmankin, because she is a blind person. 1 Ms. Gurmankin is an English teacher. She holds a Professional Certificate from the Pennsylvania Department of Education as a teacher of Comprehensive English in Pennsylvania Public Schools. In 1969 she attempted to obtain employment in the Philadelphia School District. At that time the District's medical and personnel policy excluded blind teachers from teaching sighted students in the public schools. Applicants who were certified as having a "chronic or acute physical defect," including blindness, were prevented from taking the Philadelphia Teachers Examination. Ms. Gurmankin was examined by the District's Director of Medical Services, and rejected for any position teaching sighted students because of her blindness. Ms. Gurmankin persisted in her attempts to take the examination and with the assistance of counsel at Community Legal Services, Inc., in the spring of 1974 she was admitted, and passed.
When her name was reached on the eligibility list the District offered her several positions, none of which she accepted, because they were not accompanied by an agreement that she would be afforded seniority as of the time she should properly have been admitted to the examination. Ms. Gurmankin filed this suit in November 1974, and on March 31, 1976 the district court ruled in her favor. The court ordered defendants to offer her employment
as a secondary school English teacher, with seniority rights and all other rights accruing to a secondary school English teacher commencing employment in September, 1970. Specifically, the plaintiff is to have the same rights under the School District's teacher transfer policy as a teacher who commenced employment in September, 1970.
The effect of this injunction was to require her employment, with a September 1970 seniority date. The court reserved decision on class aspects of the litigation and on back pay and attorney's fees.
Both the defendants and Ms. Gurmankin appealed from the injunction. The defendants contend that no order should have been entered. Ms. Gurmankin contends that the court fixed a seniority date later than that to which she was entitled. The Despite the absence of a stay, ten months after the injunction issued Ms. Gurmankin still was not employed by the District as an English teacher. Several offers of employment had been made to her, but she rejected them as not reflecting the seniority awarded her by the court. In January, 1977, she filed a motion to amend the injunction. She contended that the District had offered her only the least attractive schools in the system, while teachers with less seniority were placed in more attractive schools. The court permitted limited discovery on that contention, found it to be meritorious, and concluded:
defendants attempted unsuccessfully to obtain a stay pending appeal.
The School District's continued refusal over the past ten months to place Ms. Gurmankin in an appropriate position has prevented the court's order from accomplishing its purpose. Moreover, the School District has indicated that it will not make any further offers to the plaintiff unless compelled by court order. This court is under a duty to insure that its orders provide full and adequate relief, and if an order is inadequate, it should be modified accordingly.
It then amended the injunction to provide:
Within thirty (30) days of the date of this order, the defendants shall provide the plaintiff with a position as an English teacher at one of the six schools designated by plaintiff in Plaintiff's Supplemental Interrogatory, or at some other school acceptable to the plaintiff.
From this order the defendants again appealed, and again unsuccessfully sought a stay. The appeals were consolidated. In each we affirm.
The defendants contend that the court erred in finding a due process violation in the District's pre-1974 policy of refusing to allow blind persons to take the Philadelphia Teachers Examination. They also contend that an award of seniority is beyond the equitable powers of a federal court. Ms. Gurmankin defends the injunction not only for the constitutional reasons on which the district court relied, but also on equal protection grounds and on a statutory supremacy ground. The statutory supremacy argument refers to § 504 of the Rehabilitation Act of 1973, P.L. 93-112, 87 Stat. 357, 29 U.S.C. § 794:
(n)o otherwise qualified handicapped individual in the United States, as defined in section 706(6) of this title, shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
It was apparently in response to this statute that in 1974 the District changed its policy and permitted Ms. Gurmankin to take the examination. 2 If the statutory supremacy claim would suffice to sustain the injunction we would be obliged to rest on it rather than reach the due process ground on which the district court relied. 3 But as that court noted, the Rehabilitation Act of 1973 did not become effective until December, 1973. P.L. 93-112, § 500(a), 29 U.S.C. § 790(a). Ms. Gurmankin concedes that it would not apply to pre-1974 injuries. The same would appear to be true of the later Pennsylvania statutes. 4 The seniority relief afforded by the injunction is designed to remedy pre-1974 discrimination. Thus, that relief requires that we consider the district court's constitutional holding.
Relying on Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974), the court held that the In LaFleur, of course, the court dealt with employed teachers, and thus with some continued expectation of employment based on state law. Ms. Gurmankin had no contract of employment, but she had an expectation, based on state law, of being admitted to the qualifying examination. In July 1970 she was issued a Professional Certificate, No. 190-34-3597, by the Pennsylvania Department of Education, certifying her as a qualified teacher of Comprehensive English. Under the rules of the Philadelphia School District this certificate was the only requirement for entrance to the examination. 6 She was, by virtue of The District urges that even if we agree that there was a due process violation, the trial court lacked the power to cure it by the award of rightful place seniority. It distinguishes cases such as Franks v. Bowman Transp. Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976) and United States v. Int'l Union of Elevator Constructors, 538 F.2d 1012 (3d Cir. 1976) as confined solely to remedies for violations of Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e et seq. But the language of Title VII in § 706(g), 42 U.S.C. § 2000e-5(g), on which the courts have relied in affording seniority relief is merely " . . . any other equitable relief as the court deems appropriate." 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.
District policy of preventing blind teachers from teaching sighted students created an irrebuttable presumption that blind persons could not be competent teachers, in violation of due process. In LaFleur the Supreme Court ruled that mandatory leaves for pregnant teachers, five months before the birth of their children created an irrebuttable presumption of physical incompetency to teach after the fourth month of pregnancy. The court held that denying pregnant teachers the opportunity to present evidence of continued competency violated due process. The challenge was not to the requirement that teachers be sufficiently healthy for the rigors of the classroom, but to the denial of the opportunity to show that they were. In this case, as well, Gurmankin's complaint is not addressed to the requirement that Philadelphia teachers pass a qualifying examination, which she eventually passed, but rather to the pre-1974 denial of the opportunity to demonstrate her competency. We agree with the district court that Cleveland Board of Education v. LaFleur, supra, controls. 5 The refusals by the District to permit her to take the examination violated due process by subjecting Ms. Gurmankin to an irrebuttable presumption that her blindness made her incompetent to teach sighted students
the irrebuttable presumption of incompetency, deprived of the opportunity to take it between 1970 and 1974. The right to take the examination is a right arising under state law, and its deprivation in an arbitrary manner violated due process
(W)here federally...
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