APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. (D.C. Civil Action No. 74-2980).
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.*fn1 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 defendants attempted unsuccessfully to obtain a stay pending appeal.
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:
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 ...