Thorne v. City of El Segundo

Decision Date20 October 1986
Docket Number84-6323,Nos. 84-6000,s. 84-6000
Citation802 F.2d 1131
Parties46 Fair Empl.Prac.Cas. 1651, 41 Empl. Prac. Dec. P 36,566, 3 Indiv.Empl.Rts.Cas. 657 Deborah Lynn THORNE, Plaintiff-Appellant/Cross-Appellee, v. CITY OF EL SEGUNDO, et al., Defendants-Appellees/Cross-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Nathan Goldberg, Allred, Maroko, Goldberg & Ribakoff, Los Angeles, Cal., for plaintiff-appellant/cross-appellee.

Richard R. Terzian, Burke, Williams & Sorensen, Los Angeles, Cal., for defendants-appellees/cross-appellant.

Appeal from the United States District Court for the Central District of California.

Before GOODWIN, TANG and FLETCHER, Circuit Judges.

FLETCHER, Circuit Judge:

Thorne appeals, claiming the district court's judgment awarding her $812.00 in backpay in her Title VII employment discrimination action against the City of El Segundo is inadequate. She also appeals the district court's dismissal of her 42 U.S.C. Sec. 1983 claim against the individual defendants on grounds of qualified good faith immunity. The City of El Segundo cross-appeals the award of attorneys' fees to Thorne in the amount of $34,900. We vacate and remand the district court's judgment on the backpay award for recomputation, remand the issue of front pay for further findings, and affirm the dismissal of the section 1983 claim. We vacate and remand the award of attorneys' fees for reconsideration.

I FACTS

In 1983, this court reversed the district court's dismissal of Deborah Thorne's section 1983 claim against John Hampton, Police Chief Johnson, and Captain Devilbiss (the "individual defendants"). We also reversed the district court's judgment denying Thorne's Title VII claim against the City of El Segundo.

Thorne worked for the City of El Segundo Police Department as a clerk-typist until she resigned in November 1978. Thorne's claims arose out of the City's discriminatory handling of her application in January 1978 for a position as an officer on the City's police force, and its administration of polygraph testing as part of the application process. Notwithstanding her ranking as second-highest among applicants on the oral and written tests, and her satisfactory completion of physical agility tests, the department disqualified Thorne from consideration.

In Thorne v. City of El Segundo, 726 F.2d 459 (9th Cir.1983), cert. denied, 469 U.S. 979, 105 S.Ct. 380, 83 L.Ed.2d 315 (1984), we concluded that the City's proffered explanations for refusing to hire Thorne as a police officer were pretextual, and that its actions constituted illegal discrimination on the basis of sex, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e, et seq. We further held that by requiring Thorne to answer irrelevant, highly personal questions during the polygraph examination about her past sexual activities, the individual defendants violated Thorne's constitutional privacy and associational interests. We remanded the case to the district court for the limited purpose of entering judgment for Thorne on her Title VII claim, determining damages on that claim, and taking evidence on whether the defendants were entitled to qualified good faith immunity on the section 1983 cause of action. The case once again is before us to review the district court's decisions on those issues and its award of attorneys' fees.

II DISCUSSION
A. Title VII Relief

The primary objectives of Title VII are to eliminate all vestiges of discrimination in the workplace, and to make persons whole who have suffered unlawful discrimination. Albemarle Paper Company v. Moody, 422 U.S. 405, 417, 95 S.Ct. 2362, 2371, 45 L.Ed.2d 280 (1975); Accord Franks v. Bowman Transportation Company, 424 U.S. 747, 763, 96 S.Ct. 1251, 1263, 47 L.Ed.2d 444 (1976).

Although the district court has wide discretion in fashioning appropriate Title VII remedies, that discretion must be exercised in light of the objectives of Title VII, Ford Motor Co. v. EEOC, 458 U.S. 219, 226, 102 S.Ct. 3057, 3062, 73 L.Ed.2d 721 (1982), and Congress's clear intent that district courts fashion the most complete relief possible. Albemarle, 422 U.S. at 421, 95 S.Ct. at 2373. Thus, once a court finds unlawful discrimination, backpay should be denied only if denial "would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination." Id.; Alaniz v. California Processors, Inc., 785 F.2d 1412, 1416 (9th Cir.1986).

In Thorne's case, the district court awarded backpay for a limited period from July 1978, when, absent discrimination, Thorne would have assumed the duties of police trainee, through November 1978, when she voluntarily resigned from her clerk-typist position with the department. The award totalled $812.00, representing the pay differential between the clerk-typist and police officer trainee positions during the award period. The district court concluded that Thorne's backpay award could not extend beyond the November 8, 1978 resignation date, because the court found that Thorne voluntarily resigned from her position. The court applied precedents that prohibit an employee, who has been denied discriminatorily an opportunity for promotion, from collecting backpay for periods beyond that employee's voluntary resignation, unless the employee demonstrates that she was constructively discharged by the employer. See Satterwhite v. Smith, 744 F.2d 1380, 1381 n. 1 (9th Cir.1984); Heagney v. University of Washington, 642 F.2d 1157, 1166 (9th Cir.1981); Muller v. United States Steel Corp., 509 F.2d 923, 930 (10th Cir.), cert. denied, 423 U.S. 825, 96 S.Ct. 39, 46 L.Ed.2d 41 (1975). The court was wrong in doing so.

The discriminatory refusal to offer Thorne a position as a member of the police force constituted a refusal to hire, and therefore the doctrine of constructive discharge is inapplicable. 1 Thus, to the extent that the district court concluded that Thorne was rejected for a promotion 2 this finding was clearly erroneous. See Alaniz, 785 F.2d at 1416. (Findings of fact are reviewed under the clearly erroneous standard.) The facts are simply otherwise.

Thorne was preparing to enter an entirely different career, in competition with other applicants outside the police department who also wished to become police officers. See Thorne, 726 F.2d at 462. The mere fortuity that Thorne had a preexisting employment relationship with the employer who was then hiring police officers does not bring her case within the scope of promotion or demotion cases that apply the doctrine of constructive discharge.

There is a valid policy reason for limiting backpay awards in promotion cases. The purposes of Title VII are best served when parties, where possible, attack discrimination within the context of their existing employment relationships. See Nolan v. Cleland, 686 F.2d 806, 813 (9th Cir.1982); Heagney, 642 F.2d at 1166; Derr v. Gulf Oil Corporation, 796 F.2d 340, 342 (10th Cir.1986); Clark v. Marsh, 665 F.2d 1168, 1173 (D.C.Cir.1981); Bourque v. Powell Electrical Manufacturing Co., 617 F.2d 61, 65-66 (5th Cir.1980).

An employee, faced with an obstacle in the logical progression and development of a career should not quit at the first sign of institutional discrimination. Restricting backpay awards encourages the employee to work with supervisors within the existing job setting and employment relationship in an effort to overcome resistance within that workplace and to eradicate the discrimination.

But where, as here, an employee has no such opportunity, then these incentives have no relevance and backpay restrictions are inapplicable.

Had Thorne remained a clerk-typist for the police department, she would not have been in any better position to attack discrimination in police officer hiring than any other applicant who worked for another city agency or for an employer in the private sector. She had no "existing employment relationship" within the paramilitary structure of the police force. Under such circumstances, we conclude that Title VII does not require that we treat Thorne less fairly than we would another applicant.

This court has recognized the distinction between the promotion context and the situation in which a materially different position was sought. We identified the relevant inquiry to be whether the plaintiff had mitigated her damages by actively seeking employment following her resignation from the job with the discriminatory employer. In Sangster v. United Air Lines, 438 F.Supp. 1221 (N.D.Cal.1977), aff'd, 633 F.2d 864 (9th Cir.1980), cert. denied, 451 U.S. 971, 101 S.Ct. 2048, 68 L.Ed.2d 350 (1981), United Air Lines refused to permit a married stewardess supervisor to resume her former position as stewardess. The plaintiff quit her position with United and sued, charging sex discrimination. In determining the appropriate remedy, the district court considered what significance should attach to Sangster's voluntary quitting of her stewardess supervisor position. The court stated,

[I]t is necessary to distinguish between United's refusal to give Mrs. Sangster the job she wanted and sought, that of stewardess, and the job she did not want and quit, that of stewardess supervisor. It seems obvious that United cannot insulate itself from nor set up a defense to a claim of unlawful refusal to hire as to one job, by offering an applicant therefor a second job which she does not want and which differs in material aspects [citations omitted]. Such an offer may have relevance to issues of damages or mitigation, but it will not overcome the unlawfulness of its refusal to hire.

* * *

* * *

The stewardess position differed materially from the supervisory position she occupied. Thus, she was not obligated to accept or retain that position in lieu of the position she was unlawfully denied.... As at no time did she cease...

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