APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 69-225).
Hastie, Van Dusen and Hunter, Circuit Judges. Hastie, Circuit Judge, concurring in part and dissenting in part.
An understanding of the issues before the court on this appeal depends more upon an understanding of the litigation's procedural history than upon an exposition of its underlying factual background.*fn1
Plaintiffs initially brought suit in 1969, charging defendant with sex discrimination in refusing to hire them. 42 U.S.C. § 2000e-2 (1970). The trial court found for plaintiffs, and awarded back pay from the time of their applications for employment (1966) until the time when defendant offered them employment as new employees without prejudice to their rights to pursue claims for back pay and seniority (1969). Jurinko v. Edwin L. Wiegand Co., 331 F. Supp. 1184 (W.D. Pa. 1971). The district court clearly held that defendant's refusal to hire plaintiffs was not based on a bona fide occupational requirement, since defendant assumed without investigation that all women were unable to meet its stated criterion.
On appeal, this court affirmed the finding of sex discrimination, but held that the offer of employment, rejected by plaintiffs, did not terminate back pay liability. Jurinko v. Edwin L. Wiegand Co., 477 F.2d 1038 (3d Cir. 1973). The district court was therefore ordered to modify the judgment to include post-1969 back pay.
The Supreme Court granted certiorari, vacated our judgment, and remanded the case for reconsideration in the light of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). Edwin L. Wiegand Co. v. Jurinko, 414 U.S. 970, 38 L. Ed. 2d 214, 94 S. Ct. 293 (1973). The panel of this court that had decided the appeal then reconsidered the case as directed by the Supreme Court, adhered to its original decision and reinstated the direction to the district court to modify the judgment. Opinion of February 21, 1974 (unreported). However, shortly thereafter, the panel reconsidered that action, vacated its judgment and on June 7, 1974 issued a per curiam opinion and a new judgment. Beyond noting the Supreme Court's vacation of our action on first appeal, our new opinion specified only that the case would be remanded to the district court "for consideration of the record in the light of McDonnell Douglas Corporation, and for such further findings of fact and conclusions of law, if any, which may be necessary in the light of that decision of the Supreme Court." Jurinko v. Edwin L. Wiegand Co., 497 F.2d 403, 404 (3d Cir. 1974).
It is the district court's opinion on remand, dated November 22, 1974, which is now under review. Unfortunately, that opinion, apparently through inadvertence, quoted as the opinion of this court our February 21, 1974, opinion, which in actuality had been vacated. The district court proceeded to conclude that this court had "directed only that [the district] Court modify its judgment to expand the award to include seniority and back pay from the date of the unlawful practice . . . up to the date on which [plaintiffs] are actually re-instated." (Opinion of November 22, 1974, App. p. 68). Accordingly, the district court entered judgment for plaintiffs.
Ever since the Supreme Court's remand, Wiegand has construed that order, viewed in the light of the controverted issues of this case, as requiring a reconsideration of whether Jurinko and Seibert "were qualified for the jobs they sought." We agree with that analysis. McDonnell Douglas does make "qualification" essential to recovery in a case like this one. On remand, the first inclination of this court (Opinion of February 21, 1974) was to undertake the necessary reconsideration at the appellate level. However, we abandoned that position and directed the district court to make the (first) determination of whether plaintiff's recovery was impaired by McDonnell Douglas ' teachings on the "qualification" issue (or otherwise). However, by responding to the superseded remand opinion the trial judge erred, failing to recognize his duty to re-assess the liability phase of the case.*fn2
For this reason we reluctantly find it necessary to remand the case once again for reconsideration of the liability issue. Any other course would amount to a nullification of our last remand order, which required trial court consideration of McDonnell Douglas, and reinstatement of the earlier remand order, which would have reposed initial consideration of that case in (another panel of) this court.
Similar considerations govern our disposition of the damage question. The original decision of the district court awarded the plaintiffs compensation for loss of earnings from 1966 until Wiegand's 1969 offer to reemploy them without seniority or back pay. It is true that when this case was first here we held that the plaintiffs should also recover for loss of earnings after they rejected that qualified offer and until Wiegand should reemploy them with seniority and back pay. But when the Supreme Court reviewed our decision and remanded the case to us it expressly vacated our ruling on damages.
In these circumstances we remanded the case to the district court without any instruction on allowable damages. Jurinko, supra, 497 F.2d 403 (3d Cir. 1974). However, in the decision from which the present appeal has been taken the district court, as discussed above, incorrectly took the position that it was bound by this court's February 21, 1974 opinion and judgment on remand in which we did repeat our original ruling on damages. On this issue as well, a remand is required.
During the pendency of the present appeal, the Supreme Court handed down its opinion in Albemarle Paper Co. v. Moody, 422 U.S. 405, 45 L. Ed. 2d 280, 95 S. Ct. 2362 (1975). That case does not consider the effect of a qualified offer of employment on damages. But it does emphasize the equitable nature of an award of back pay in cases under Title VII of the 1964 Civil Rights Act and the responsibility of the district court to decide each back pay controversy in a way calculated to achieve a just and equitable result in the circumstances of the case before it. Cf. Kober v. Westinghouse Electric Corp., 480 F.2d 240 (3d Cir. 1973); Bryan v. Pittsburgh Plate Glass Co., 494 F.2d 799 (3d Cir. 1974).
The district court incorrectly believed that we had deprived it of equitable discretion to consider and determine on remand how justice could best be achieved in disposing of the claim for back pay for the years after 1969. Particularly in the light of the Albemarle opinion, we think the district court should be given an opportunity to exercise its independent judgment on this ...