1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-8-1995

Squires v Bonser

Precedential or Non-Precedential:

Docket 94-7035

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Recommended Citation

"Squires v Bonser" (1995). 1995 Decisions. Paper 122.

http://digitalcommons.law.villanova.edu/thirdcircuit_1995/122
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 _______________ 

 NO. 94-7035 

 _______________ 

 JOSEPH SQUIRES, SR. 

 Appellant 

v. 

 THOMAS BONSER; JAY E. HUFFMAN; 

 MIDDLE SMITHFIELD TOWNSHIP 

 Appellees 

 _______________ 

 On Appeal from the United States District Court 

 for the Middle District of Pennsylvania 

 D.C. No. 92-00908 

 _______________ 

 Argued September 20, 1994 

 _______________ 

 Before: BECKER and COWEN, Circuit Judges 

 and POLLAK, District Judge*

 (Filed May 8, 1995) 

 

 _______________ 

 

 Cletus P. Lyman, Esq. (argued) 

 Lyman & Ash 

 1612 Latimer Street 

 Philadelphia, PA 19103 

 

 Attorney for Appellant 

 Angela L. Dumm, Esq. (argued) 

 Marshall, Dennehey, Warner, 

 

*. Honorable Louis H. Pollak, United States District Judge for 

the Eastern District of Pennsylvania, sitting by designation. 
 Coleman & Goggin 

 1845 Walnut Street 

 Philadelphia, PA 19103 

 Attorney for Appellees 

 ______________ 

 OPINION OF THE COURT 

 _______________ 

POLLAK, District Judge. 

 This appeal addresses the district court's denial of 

reinstatement in a case arising under 42 U.S.C. § 1983. The jury 

sustained appellant's constitutional claim, finding that 

appellees' decision not to reappoint appellant to a further 

annual term as township working roadmaster was predicated on 

appellant's exercise of his First Amendment rights; accordingly, 

the jury awarded damages to appellant. But the district court, 

in the exercise of its equitable discretion, declined to direct 

that appellant be reinstated as working roadmaster. On review of 

the reasons assigned by the district court for not ordering 

reinstatement, we conclude that those reasons do not adequately 

support the district court's decision not to provide make-whole 

relief. Accordingly, we will reverse the judgment of the 

district court and remand for entry of an order of reinstatement 

and for a new trial on compensatory damages. 

I
 Appellant Squires, appellee Bonser, and appellee 

Huffman constitute1 the membership of Middle Smithfield 

Township's board of township supervisors (hereinafter "the 

Board"). The three-member Board is responsible for "[t]he 

general supervision of the affairs of the township." 53 Pa. 

Cons. Stat. Ann. § 65510.2 Squires, a Republican, has served on 

the Board since January 1, 1984. Bonser and Huffman, both 

Democrats, have served on the Board since, respectively, January 

1, 1976, and January 1, 1986. 

 Included among the Board's powers is that of appointing 

superintendents or roadmasters to work on and maintain the roads. 

Pennsylvania law expressly allows for a member of the Board to 

 

1. In using the present tense, we characterize the case as it 

stood when the record and briefs on appeal were filed; the 

parties have not suggested, either at oral argument in this court 

or thereafter, that the posture of the case has undergone any 

significant change. 

2. Middle Smithfield Township is organized pursuant to the 

Second Class Township Code, 53 Pa. Cons. Stat. Ann. § 65101 et.

seq. Section 65510 provides in full: 

 The general supervision of the affairs 

of the township shall be in the hands of 

three registered electors of the township, 

who shall be styled township supervisors, 

except that when upon referendum the election 

of two additional supervisors is provided 

for, the general supervision of the affairs 

of the township shall be in the hands of five 

registered electors of the township, who 

shall be styled township supervisors. 

53 Pa. Cons. Stat. Ann. § 65510 (Supp. 1994). 
serve as a superintendent or roadmaster. See 53 Pa. Cons. Stat. 

Ann. § 65514.3

 From 1984 through 1989, Squires held the position of 

part-time roadmaster. In January, 1990, Squires was appointed by 

the Board at its annual reorganizational meeting to the full-time 

position of working roadmaster, a position in which Squires had 

responsibility for supervising the construction, maintenance, and 

 

3. Section 65514 provides in part: 

 The board of township supervisors, 

immediately after their organization, shall 

divide the township into one or more road 

districts. They shall employ a 

superintendent for the entire township or a 

roadmaster for each district. . . . The 

supervisors shall fix the wages to be paid . 

. . to the superintendent or roadmasters and 

laborers for work on the roads and bridges, 

which wages shall not exceed wages paid in 

the locality for similar services. 

 This section shall not prohibit the 

township supervisors from being employed as 

superintendents or roadmasters, or as 

laborers, if physically able to work on and 

maintain the roads. With regards to boards 

of supervisors which are designated as threemember boards, any supervisor who is to be 

considered by such a board for position as a 

compensated employee of the township, as 

authorized by this section, shall not be 

excluded from voting on the issue of such 

appointment; such action shall be deemed to 

be within the scope of authority as a 

supervisor and shall not be deemed to 

constitute an illegal or an improper conflict 

of interest. 

53 Pa. Cons. Stat. Ann. § 65514 (Supp. 1994). 
repair of the Township's roads. Squires' appointment as working 

roadmaster had the support of both Bonser and Huffman. Squires 

was reappointed to the position in January 1991, again with the 

support of Bonser and Huffman. In January 1992, Squires was not 

reappointed and Bonser became the working roadmaster. 

 On July 2, 1992, Squires instituted this § 1983 action 

against Bonser, Huffman, and the Middle Smithfield Township, 

contending that his non-reappointment to the position of working 

roadmaster constituted a violation of his First Amendment rights. 

Specifically, Squires undertook to show at trial that the nonreappointment occurred in retaliation for: (1) comments made by 

Squires to Huffman in 1991 in which Squires defended his son's 

candidacy for a position on the Board;4 and (2) criticism by 

Squires in 1988, 1989, and 1991 of Huffman's participation in 

certain township matters  in particular, Squires' allegations 

that Huffman, an electrical contractor, had a conflict of 

interest in performing contracting work for several developers 

who had matters pending before the Board. 

 On April 27, 1993, the jury returned a verdict for 

Squires, awarding him $37,100 in compensatory damages and $1,500 

in punitive damages. On May 7, 1993, Squires filed a motion with 

the district court for reinstatement to the position of working 

 

4. Squires' son ran against Huffman in the November 1991 

election for a position on the Board. Huffman won the election. 

2 App. at 291. 
roadmaster. The motion for reinstatement was denied on December 

14, 1993. Squires has appealed. 

II

A

 Reinstatement is an equitable remedy available in 

unconstitutional discharge cases arising under § 1983. Versarge 

v. Township of Clinton, New Jersey, 984 F.2d 1359, 1368 (3d Cir. 

1993).5 The decision whether to award reinstatement thus lies 

within the discretion of the district court. 

 In reviewing an order denying reinstatement, we do not 

substitute our judgment for that of the district court. We do, 

however, have an obligation to examine whether the equitable 

factors considered by the district court and the weight given to 

those factors are appropriate in light of the purposes underlying 

 

5. Section 1983, authorizing both legal and equitable relief, 

provides in pertinent part: 

 Every person who, under color of statute, 

ordinance, regulation, custom, or usage, of 

any State or Territory or the District of 

Columbia, subjects, or causes to be 

subjected, any citizen of the United States 

or other person within the jurisdiction 

thereof to the deprivation of any rights, 

privileges, or immunities secured by the 

Constitution and laws, shall be liable to the 

party injured in an action at law, suit in 

equity, or other proper proceeding for 

redress. 

42 U.S.C. § 1983 (1994). 
the statutory cause of action. As we stated in Gurmankin v. 

Costanzo, 626 F.2d 1115 (3d Cir. 1980), cert. denied, 450 U.S. 

923 (1981): 

 Meaningful appellate review of the exercise 

of discretion requires consideration of the 

basis on which the trial court acted. If the 

factors considered do not accord with those 

required by the policy underlying the 

substantive right or if the weight given to 

those factors is not consistent with that 

necessary to effectuate that policy, then the 

reviewing tribunal has an obligation to 

require the exercise of discretion in 

accordance with "what is right and equitable 

under the circumstances and the law." 

Id. at 1119-1120 (quoting Langnes v. Green, 282 U.S. 531, 541 

(1931)). See also Albemarle Paper Company v. Moody, 422 U.S. 

405, 417 (1975) ("[W]hen Congress invokes the Chancellor's 

conscience to further transcendent legislative purposes, what is 

required is the principled application of standards consistent 

with those purposes . . . ."). 

 In the context of discriminatory discharge actions 

arising under Title VII, it is well established that the district 

court's consideration of equitable remedies is to be guided by 

the statute's central goals of make-whole relief and deterrence. 

Id. at 417-22. Thus, the denial of a make-whole remedy must be 

supported by "reasons which, if applied generally, would not 

frustrate the central statutory purposes of eradicating 

discrimination throughout the economy and making persons whole 

for injuries suffered through past discrimination." Id. at 421 
(addressing denial of backpay). See Franks v. Bowman Transp. 

Co., 424 U.S. 747, 771 (1976) (addressing denial of seniority 

relief) (quoting Albemarle Paper).6 This court has previously 

recognized, for example, that denial of reinstatement may be 

appropriate in a Title VII action where "animosity between the 

parties makes such a remedy impracticable." Ellis v. Ringgold 

School Dist., 832 F.2d 27, 30 (3d Cir. 1987). 

 This action arises under § 1983, whose "purpose . . . 

is to deter state actors from using the badge of their authority 

to deprive individuals of their federally guaranteed rights and 

to provide relief to victims if such deterrence fails." Wyatt v. 

Cole, 112 S. Ct. 1827, 1830 (1992). In 1871, in fashioning 

§ 1983  as, in 1991, it was to do in revising (with a view to 

strengthening) Title VII  Congress authorized courts to deploy 

both legal and equitable remedies. Under Title VII, the 

statute's make-whole purpose "is shown by the very fact that 

Congress took care to arm the courts with full equitable powers." 

Albemarle Paper, 422 U.S. at 418. The same is true under § 1983: 

the make-whole goal "[does] not differ when the basis of the 

underlying right is the Constitution rather than a statute such 

 

6. Moreover, a district court, when denying make-whole relief, 

is required to articulate its reasons for doing so. See Franks 

v. Bowman Transp. Co., 424 U.S. at 774 ("[I]f the district court 

declines, due to the peculiar circumstances of the particular 

case, to award relief generally appropriate under Title VII, 

'[i]t is necessary . . . that . . . it carefully articulate its 

reasons' for so doing." (quoting Albemarle Paper, 422 U.S. at 421 

n.14)). 
as Title VII." Gurmankin, 626 F.2d at 1121.7 Because of this 

consonance of the underlying policy considerations, the framework 

of analysis governing reinstatement in Title VII actions also 

governs in § 1983 actions implicating First Amendment concerns; 

that is, a denial of reinstatement is unwarranted unless grounded 

in a rationale which is harmonious with the legislative goals of 

providing plaintiffs make-whole relief and deterring employers 

from unconstitutional conduct. Cf. Gurmankin, 626 F.2d at 1121 

(section 1983 cases involving "discrimination in employment based 

on stereotyped notions of ability . . . require[] equitable 

remedies comparable to those deemed appropriate in Title VII 

employment discrimination cases"). 

 We appreciate that there may not be absolute congruence 

between the equitable remedies long accepted under Title VII and 

those conventional under § 1983, for the reason that, prior to 

the revision of Title VII in 1991, the remedies available under 

Title VII were entirely equitable, whereas § 1983 has always 

provided both legal and equitable relief. Given the pre-1991 

disparity between the two statutes' remedial arsenals, it has 

 

7. We have similarly recognized the make-whole purpose governing 

remedies for employment discrimination cases arising under the 

Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et 

seq. See Maxfield v. Sinclair Intern., 766 F.2d 788, 796 (3d 

Cir. 1985) ("The inclusion of equitable relief strengthens the 

conclusion that Congress intended victims of age discrimination 

to be made whole by restoring them to the position they would 

have been in had the discrimination never occurred."), cert. 

denied, 474 U.S. 1057 (1986). 
been argued that the presumption in favor of reinstatement 

developed under pre-1991 Title VII case law should not be 

directly transferred to actions arising under § 1983. See

Rosario-Torres v. Hernandez-Colon, 889 F.2d 314, 321-22 (1st Cir. 

1989) (en banc) ("The fewer the available methods of redress, the 

more likely that 'sound legal principles' will counsel in favor 

of reinstatement as the relief of choice."). 

 We do not find it fruitful to explore how the 

"presumption" or "preference" in favor of reinstatement in the 

Title VII context compares in kind or degree with that applicable 

to reinstatement under § 1983. Suffice it to say that, while the 

availability of legal relief under § 1983  and now under Title 

VII  may influence the use of equitable remedies under these 

provisions, the central goals of make-whole relief and deterrence 

must guide a district court's consideration of reinstatement 

under both. Reinstatement advances the policy goals of makewhole relief and deterrence in a way which money damages cannot. 

As stated by the Eleventh Circuit in Allen v. Autauga County 

Board of Education, 685 F.2d 1302, 1306 (11th Cir. 1982): 

 When a person loses his job, it is at best 

disingenuous to say that money damages can 

suffice to make that person whole. The 

psychological benefits of work are 

intangible, yet they are real and cannot be 

ignored. . . . We also note that 

reinstatement is an effective deterrent in 

preventing employer retaliation against 

employees who exercise their constitutional 

rights. If an employer's best efforts to 

remove an employee for unconstitutional 

reasons are presumptively unlikely to 
succeed, there is, of course, less incentive 

to use employment decisions to chill the 

exercise of constitutional rights. 

See also Banks v. Burkich, 788 F.2d 1161, 1164 (6th Cir. 1986) 

("The prospect of money damages will not be sufficient for many 

employees to overcome the otherwise chilling effect that 

accompanies the threat of termination."). Thus, while the 

availability of money damages may have significance in the 

district court's consideration of remedies, reinstatement is the 

preferred remedy in the absence of special circumstances 

militating against it. See Feldman v. Philadelphia Housing 

Authority, 43 F.3d 823, 831 (3d Cir. 1994) ("The equitable remedy 

of reinstatement is available for discharges that violate 42 

U.S.C. § 1983, and reinstatement is the preferred remedy to cover 

the loss of future earnings." (citations omitted)); id. at 835 

(Garth, J., concurring in part and dissenting in part) ("It is 

well settled that reinstatement is the preferred remedy to avoid 

future lost earnings.").8 In sum, we think the First Circuit had 

it right in its well-reasoned en banc opinion in Rosario-Torres: 

 

8. Cf. Robinson v. S.E. Pa. Transp. Auth., Red Arrow, 982 F.2d 

892, 899 (3d Cir. 1993) (Title VII) ("[R]einstatement is the 

preferred remedy to avoid future lost earnings . . . ."); Ellis, 

832 F.2d at 30 (Title VII) ("Reinstatement is the preferred 

remedy to avoid future lost earnings."); Blum v. Witco Chemical 

Corp., 829 F.2d 367, 373 (3d Cir. 1987) ("Back pay coupled with 

reinstatement is the preferred remedy to avoid future damages in 

ADEA cases."); Maxfield, 766 F.2d at 796 (ADEA) ("Reinstatement 

is the preferred remedy to avoid future lost earnings, but 

reinstatement may not be feasible in all cases."). 
 Whenever an ex-employee sues alleging 

wrongful dismissal by a government agency, 

job restoration may be a material aspect of 

meaningful relief. Yet in the real world, 

reinstatement in unlawful-discharge cases 

often will place some burden on the agency: 

there will likely be tension (or even 

hostility) between the parties when forcibly 

reunited; employees who have assumed duties 

previously performed by the fired worker will 

have to be displaced when he or she returns; 

and, as a result, the public's business may 

be conducted somewhat less efficaciously. Be 

that as it may, we agree with those courts 

which have ruled that such routinely 

"incidental" burdens, in their accustomed 

manifestations, are foreseeable sequelae of 

defendant's wrongdoing, and usually 

insufficient, without more, to tip the scales 

against reinstatement when first amendment 

rights are at stake in a section 1983 action. 

 We do not perceive such a positioning of 

the weighbeam as a departure from general 

equitable principles. It is, rather, merely 

a way of setting a starting-point for the 

district court's consideration. Once this is 

understood, the "presumption" of 

reinstatement becomes just the dress of 

thought, a shorthand manner of saying that 

equitable considerations different in kind or 

degree from those regularly accompanying 

reinstatement must be present if 

reinstatement is to be withheld from the 

victim of a first amendment infraction. 

889 F.2d at 322-23 (citations omitted). Cf. Professional Ass'n 

of College Educators v. El Paso County Community College Dist., 

730 F.2d 258, 269 (5th Cir. 1984) ("[T]he court should deny 

reinstatement in a first amendment wrongful discharge case on the 

basis of equity only in exceptional circumstances."), cert. 

denied, 469 U.S. 881 (1984); Banks, 788 F.2d at 1165 (reversing 
district court's denial of reinstatement in a § 1983 action where 

record did "not . . . establish this as one of those 'exceptional 

cases in which reinstatement is inappropriate'" (quoting Allen, 

685 F.2d at 1306)).9

 With these principles in mind, we turn to examine the 

factors relied upon by the district court to support its denial 

of Squires' motion for reinstatement. 

B

 The district court found that the following 

circumstances supported a denial of reinstatement: (1) "the 

evidence at trial did not overwhelmingly support Squires' claim 

of constitutional deprivation"; (2) "[t]here were incidents of 

poor performance by plaintiff"; (3) plaintiff "would still be 

required to work at the side of the defendants"; (4) 

"[r]einstatement would create a delicate balance which could 

jeopardize required township business which remains the 

responsibility of the supervisors who, in Pennsylvania, uniquely 

serve as the executive as well as the legislative branches of 

government"; (5) this was not "a case where plaintiff has been 

unable to secure employment"; and (6) reinstatement would "not 

 

9. Moreover, in § 1983 unconstitutional discharge cases, as in 

Title VII cases, the district court is required to articulate its 

reasons when denying reinstatement. See supra n.6. 
result in the restoration of seniority or pension benefits." 

Squires v. Bonser, et al., No. 92-908 (M.D. Pa. Dec. 14, 1993). 

 We find that these factors, as developed on the record 

before us, do not present special circumstances which justify the 

denial of reinstatement: 

 The first factor  the district court's assessment 

that the evidence "did not overwhelmingly support Squires' claim 

of constitutional deprivation"  is an impermissible factor for 

the district court to consider. Once the jury has found in favor 

of plaintiff on liability, the existence of a constitutional 

deprivation is an established fact which may not be re-examined 

in the district court's subsequent determinations  including 

determinations of appropriate equitable remedies. See United 

States Equal Employment Opportunity Commission v. Century 

Broadcasting Corp., 957 F.2d 1446 (7th Cir. 1992) ("'[I]n 

deciding whether to grant equitable relief under Title VII, the 

district court [is] prohibited from reconsidering any issues 

necessarily and actually decided by the jury.'" (quoting Hussein 

v. Oshkosh Motor Truck Co., 816 F.2d 348, 355 (7th Cir. 1987))); 

cf. Curtis v. Loether, 415 U.S. 189, 196 n. 11 (1974) (where a 

case encompasses claims for both legal and injunctive relief, 

"the right to jury trial on the legal claim, including all issues 

common to both claims, remains intact"); Roebuck v. Drexel 

University, 852 F.2d 715 (3d Cir. 1988) (the "preeminence of jury 

verdicts" requires that "the jury's findings on a § 1981 claim . 
. . [bind] the trial judge's resolution of a concurrently tried 

Title VII claim" on issues common to both claims). For the 

district court to accord weight to its view that the evidence 

supporting the jury's finding was not "overwhelming" would 

impermissibly interfere with the province of the jury.10

 The second factor mentioned by the district court was 

"incidents of poor performance by plaintiff." Under the Mount 

Healthy framework applicable to First Amendment unconstitutional 

discharge cases arising under § 1983, a finding of liability 

against the employer requires the inference that, absent the 

unconstitutional conduct, the adverse employment action would not 

have occurred.11 Denying reinstatement merely upon a showing of 

 

10. We note that the jury found the evidence sufficiently strong 

so as to justify a punitive damages award of $1500. 2 App. at 

667. In awarding punitive damages, the jury evidently found, in 

accordance with the district court's instruction on punitive 

damages, that the defendants had acted "with malicious intent to 

violate the plaintiff's Federal rights, or unlawfully to injure 

him, [or] . . . with a callous or reckless disregard of the 

plaintiff's rights." Id. at 653-54. 

11. The distribution of the burden of proof in First Amendment 

unconstitutional discharge actions was established by the Supreme 

Court in Mount Healthy City School Dist. v. Doyle, 429 U.S. 274 

(1977). Under the Mount Healthy framework, the plaintiff bears 

the burden of showing that "his conduct was constitutionally 

protected, and that this conduct was a 'substantial factor' or, 

to put it in other words, that it was a 'motivating factor' in 

the [defendant's] decision not to rehire him." Mount Healthy, 

429 U.S. at 287. If plaintiff carries that burden, the employer 

bears the burden of showing "by a preponderance of the evidence 

that it would have reached the same decision as to [plaintiff's] 

reemployment even in the absence of the protected conduct." Id. 

Cf. Bradley v. Pittsburgh Bd. of Education, 913 F.2d 1064, 1074-

75 (3d Cir. 1990) (applying Mount Healthy framework). 
(..continued) 

 Given this distribution of the burden of proof, a liability 

verdict for plaintiff requires the inference that the employer's 

decision would not have been reached in the absence of the 

protected conduct. As discussed in Price Waterhouse  in which 

the Supreme Court applied the Mount Healthy framework to "mixedmotives" cases arising under Title VII  "[a] court that finds 

for a plaintiff under [the Mount Healthy] standard has 

effectively concluded that an illegitimate motive was a 'but-for' 

cause of the employment decision." Price Waterhouse v. Hopkins, 

490 U.S. 228, 248 (1989) (plurality opinion). See also id. at 

277 (O'Connor, J., concurring) (the "evidentiary scheme [adopted 

in Price Waterhouse] essentially requires the employer to place 

the employee in the same position he or she would have occupied 

absent discrimination" (citing Mount Healthy in comparison)). 

 The jury instructions provided by the district judge, while 

generally following Mount Healthy, seem to have been somewhat 

imprecise as to the relative burdens of proof. The district 

judge first stated that plaintiff had the burden of proving that 

his speech activities were "a substantial factor or motivating 

factor" in the decision not to reappoint him as roadmaster. 2 

App. at 648. The district judge then stated that if plaintiff 

carried its burden, defendants had the burden of showing "by a 

preponderance of the evidence that the plaintiff would have been 

dismissed or not reappointed in any event." Id. at 650. 

Finally, the district judge said: 

 If the defense meets its burden of proof that 

plaintiff would have been dismissed or not 

reappointed in any event, plaintiff must 

satisfy you by the preponderance of the 

evidence that the reasons offered by the 

defense were simply a pretext. And that, 

indeed, motivation to rid him because of his 

speech was still a substantial factor in the 

actions of each defendant. 

Id. at 651. This final instruction may be seen as introducing 

ambiguity into the Mount Healthy formulation: i.e., this 

instruction may be read as meaning that a verdict could be 

returned in favor of the plaintiff even if the defendants had 

proved that they would not have reappointed plaintiff in any 

case. Appellees have not, however, placed this aspect of the 

case in focus on appeal. Consequently, appellees are bound to 

the results which normally flow from a finding of liability under 

the Mount Healthy framework. 
run-of-the-mill incidents of sub-par performance would 

substantially undercut the goal of providing make-whole relief. 

Thus, we do not find that such a showing constitutes a special 

circumstance militating against reinstatement.12 

 The third and fourth factors identified by the district 

court  that plaintiff "would still be required to work at the 

side of the defendants" and that "[r]einstatement would create a 

delicate balance which could jeopardize required township 

business"  are also not buttressed by findings sufficient to 

make them permissible considerations. In order to deny 

reinstatement, more than the ordinary tensions accompanying an 

unconstitutional discharge lawsuit must be present. "The fact 

that reinstatement might have 'disturbing consequences,' 'revive 

old antagonisms,' or 'breed difficult working conditions' usually 

is not enough 'to outweigh the important first amendment policies 

that reinstatement serves [absent] probable adverse consequences 

 

12. Denial of reinstatement may be appropriate in cases 

involving employee misconduct of a particularly egregious kind, 

but in the case at bar the district court has made no findings of 

this sort. See Professional Ass'n of College Educators, 730 F.2d 

at 268 (harassment of president of the college through anonymous 

telephone calls may justify decision not to reinstate former 

dean). Reinstatement may also be denied where after-acquired 

evidence establishes "wrongdoing . . . of such severity that the 

employee would have been terminated on those grounds alone if the 

employer had known of it at the time of the discharge." McKennon 

v. Nashville Banner Publishing Co., 115 S. Ct. 879, 886-87 

(1995). It has not been found by the district court or contended 

here that this case falls under the after-acquired evidence 

rubric. 
[that] weigh so heavily that they counsel the court against 

imposing this preferred remedy.'" Banks, 788 F.2d at 1165 

(quoting Professional Ass'n of College Educators, 730 F.2d at 

269); cf. Blum, 829 F.2d at 373-74 (ADEA) ("Unfortunately, 

reinstatement is not always feasible, e.g., because of 

irreparable animosity between the parties . . . ."); McKnight v. 

General Motors Corp., 908 F.2d 104, 116 (7th Cir. 1990) (Title 

VII) ("Mere hostility by the employer or its supervisory 

employees is of course no ground for denying reinstatement . . . 

That would arm the employer to defeat the court's remedial 

order."), cert. denied, 499 U.S. 919 (1991). Since the district 

court made no finding that tensions between the parties exceeded 

those which normally accompany such actions  and, indeed, 

expressly recited that it did "not . . . conclude that such 

animosity is irreparable"  these considerations do not justify 

a denial of reinstatement.13

 Finally, the fifth and sixth factors identified by the 

district court  that this was not "a case where plaintiff has 

been unable to secure employment," inasmuch as "[a]t all times he 

had his own contracting business, and after his termination, he 

was employed full time at an ACME market"; and that 

 

13. As of the time the briefs on appeal were filed, it appeared 

that Squires was still a member of the Board and Bonser was 

working roadmaster, see supra n.1., which would seem to mean that 

a "delicate balance" would exist whether or not Squires were to 

replace Bonser as working roadmaster. 
"[r]einstatement will not result in the restoration of seniority 

or pension benefits"  do not present special circumstances that 

cut against reinstatement. While these factors indicate that 

front-pay may come closer to providing make-whole relief than it 

otherwise might, they do not negate the additional psychological 

and deterrent benefits which reinstatement provides. Cf. Allen, 

685 F.2d at 1306. Moreover, in considering that, after losing 

his township position, the plaintiff was able to find alternative 

employment, the district court failed to give adequate 

consideration to the comparability of that new employment. We do 

not believe that the fact that Squires was able to get a job in 

the produce section at an ACME market militates against granting 

him reinstatement as the township's working roadmaster. 

 In sum, we conclude that denial of reinstatement for 

the reasons assigned by the district court was not a proper 

exercise of that court's equitable discretion.14

 

14. Appellees cite an additional factor, not discussed by the 

district court, in support of denying reinstatement. Appellees 

argue that it would be inappropriate for Squires to be reinstated 

because the position of working roadmaster is a one-year 

appointment. Since the decision challenged by Squires was the 

non-reappointment of Squires in 1992, appellees contend that an 

order for reinstatement at this time would "interfere with the 

statutory scheme for appointing roadmasters." Appellees' Br. at 

21. We agree that ordering reinstatement does, in some measure, 

intrude upon the statutory scheme. But the jury, through its 

verdict in Squires' favor, has determined that defendants have 

skewed the statutory scheme by infringing upon Squires' First 

Amendment rights. Reinstatement comes into play as a make-whole 

remedy vindicating those rights and thereby restoring the 

constitutional integrity of the statutory scheme. 
III

 Appellees have offered a further reason why 

reinstatement was properly denied. Appellees contend that, 

because reinstatement and front-pay are alternative forms of 

relief, and because Squires was awarded front-pay damages by the 

jury, relief in the form of reinstatement is barred. 

 We disagree. It is true that if front-pay was awarded, 

a grant of reinstatement would raise concerns regarding double 

recovery. Such concerns could be alleviated by an order vacating 

any front-pay award; however, it may not be possible in this case 

to isolate the front-pay award since the jury awarded a lump-sum 

amount for compensatory damages.15 But this does not foreclose 

reinstatement; rather, it means that the issue of double recovery 

should be resolved by a new trial on compensatory damages. Cf.

Savarese v. Agriss, 883 F.2d 1194, 1205-06 (3d Cir. 1989) 

(remanding for a new trial on compensatory damages where there 

may have been overlap between backpay award determined by the 

 

15. Question Three of the verdict form, to which the jury 

responded with the lump-sum award of $37,100, read: "What 

compensatory damages, if any, did the plaintiff suffer?" 2 App. 

at 667. In instructing the jury regarding the components of the 

damages award, the district judge stated that "[p]laintiff is 

entitled to be compensated for any wages that you find that he 

lost up to this date, or any wages that you find that he may lose 

in the future." Id. at 651. 
district judge and compensatory damages award determined by the 

jury); Greminger v. Seaborne, 584 F.2d 275, 278-79 (8th Cir. 

1978) (remanding for redetermination of monetary award where 

there may have been overlap between backpay award and 

compensatory damages award). Therefore, the fact that the jury 

was instructed on front-pay does not preclude a judicial 

determination that equitable relief in the form of reinstatement 

is called for.16 

IV

 In sum, the factors enumerated by the district court do 

not present special circumstances justifying the denial of 

reinstatement. Further, reinstatement is not precluded by the 

fact that the jury may have included front-pay in its damages 

award. Accordingly, we will vacate the district court's order 

denying reinstatement and remand the case for entry of an order 

of reinstatement and for a new trial on compensatory damages. 

 

16. However, we discourage the practice of asking the jury for a 

lump-sum award which includes front-pay when the plaintiff also 

seeks reinstatement. Such a procedure wastes judicial resources 

in that if reinstatement is awarded a retrial is then required to 

parcel out the damages into component parts (i.e., front-pay 

versus back-pay). Accordingly, we believe the preferable course 

for a plaintiff seeking the equitable remedy of reinstatement is 

for such a plaintiff to ask for a jury interrogatory concerning 

the amount of damages attributable to front-pay in order to avoid 

a double recovery. In the future, we may require such a practice 

in order to preserve a claim for reinstatement.