UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ERWIN A. BURTNICK, 

Plaintiff-Appellee,

v.

MAYOR AND CITY COUNCIL OF

BALTIMORE CITY,

Defendant-Appellant,  No. 01-2133

and

JACQUELINE F. MCLEAN,

Defendant.

JOAN M. PRATT, Secretary of the

Board of Estimates,

Movant. 

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

David A. Faber, District Judge, sitting by designation.

(CA-94-3440-S)

Argued: September 26, 2002

Decided: October 23, 2002

Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

ARGUED: Michael George Raimondi, OFFICE OF THE CITY

SOLICITOR, Baltimore, Maryland, for Appellant. Howard J. Schul-
man, SCHULMAN & KAUFMAN, L.L.C., Baltimore, Maryland, for

Appellee. ON BRIEF: William R. Phelan, Jr., OFFICE OF THE

CITY SOLICITOR, Baltimore, Maryland, for Appellant. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

In this Title VII action, a jury found that the Mayor and City Council of Baltimore City discriminated against Erwin A. Burtnick, a former employee in the Office of the Comptroller, and the court awarded

Burtnick back pay in the amount of $483,025.33. The City appeals,

contending that the back pay award erroneously included a time

period in which the "employment position" was exempt under Title

VII. We affirm. 

I.

This is the second time that this case has been before us. See Burtnick v. McLean, 76 F.3d 611 (4th Cir. 1996); see also Brown v.

McLean, 159 F.3d 898 (4th Cir. 1998) (involving similar termination

in the Office of the Comptroller). We set forth only the facts necessary to understand the legal issue presented in this appeal. 

On July 1, 1992, Burtnick, a white male, lost his job as Assistant

Comptroller when the City abolished that position. At the same time,

the City created the position of Administrative Officer III, to which

it appointed Mereida Goodman, a female African-American, who

held the position from July 1-August 9, 1992. On August 10, 1992,

the City abolished the Administrative Officer III position and created

the position of Executive Assistant to the Comptroller, which Goodman continued to hold. 

2 BURTNICK v. MAYOR AND CITY COUNCIL OF BALTIMORE
In December 1994, Burtnick sued his supervisor, Comptroller Jacqueline McLean, a female African-American, and the City, alleging

violations of Title VII, the Age Discrimination in Employment Act of

1967, and 42 U.S.C. §§ 1981 and 1983. The district court granted

summary judgment for all defendants based on legislative immunity.

Burtnick appealed. In accord with Berkley v. Common Council of

Charleston, 63 F.3d 295 (4th Cir. 1995) (en banc) (which we decided

after the district court’s grant of summary judgment), we affirmed the

grant of summary judgment to McLean based on legislative immunity

but reversed and remanded as to the City. On remand, the district

court again granted summary judgment to the City on all § 1983

claims, and Burtnick conceded that he had insufficient evidence to

raise any claims based on age or religious discrimination. Burtnick v.

McLean, 953 F. Supp. 121, 123 (D. Md. 1997). 

The district court denied summary judgment to the City on Burtnick’s "remain[ing]" claim, under Title VII and § 1981, "that he was

not hired for the scheduled position of Administrative Officer III

(which was later translated to the exempt position of Executive Assistant to the Comptroller), on account of his race and/or sex." Id. at 124.

On March 30, 2000, the jury returned a verdict for Burtnick on this

claim. Pursuant to that verdict, the district court awarded Burtnick

back pay under Title VII in the amount of $ 438,025.33. 

II.

The City challenges the back pay award on a single ground. The

City conceded below that for the purpose of calculating damages it

had illegally discriminated against Burtnick because of his race and

sex. Nonetheless, the City claims that the district court erred in holding that "Burtnick could be compensated for the time after the

employment position became exempt" from the City civil service system and therefore from the requirements of Title VII. Brief of Appellant at 9. There are two difficulties with this argument. 

First, as the trial judge recognized, accepting the City’s contention

would mean that an employer "after firing its employee in violation

of the law, can cut off damages by removing the job from the civil

service laws, which the discriminating entity writes and administers.

This argument would effectively allow a municipal employer openly

BURTNICK v. MAYOR AND CITY COUNCIL OF BALTIMORE 3
and admittedly to fire a nonexempt employee for a forbidden reason

and then, the following day, reclassify the job, which the employee

held, making it exempt from the Title VII protection" and thus "insulate" the employer "from nearly all liability." Such an approach, the

district court properly concluded, "does not accord with the policy

behind Title VII." See Albemarle Paper Co. v. Moody, 422 U.S. 405,

421 (1975) ("[G]iven a finding of unlawful discrimination, back pay

should be denied only for reasons which, if applied generally, would

not frustrate the central statutory purposes" of Title VII.); Edwards v.

Sch. Bd. of Norton, Va., 658 F.2d 951, 955 (4th Cir. 1981) ("To

require those who have been subjected to unlawful discrimination to

prove a continuing entitlement to their jobs in order to receive back

pay awards beyond the terms of their current employment would frustrate the purpose of the Act and countenance discrimination without

an effective deterrent."). 

Moreover, the City has failed to demonstrate the critical underlying

predicate of its argument — that "the employment position" ever "became exempt" from the City civil service system and therefore from

Title VII. 

Title VII defines "employee" as "an individual employed by an

employer." 42 U.S.C.A. § 2000e(f) (West 1994). The definition

exempts "any person elected to public office in any State or political

subdivision of any State by the qualified voters thereof, or any person

chosen by such officer to be on such officer’s personal staff, or an

appointee on the policy making level or an immediate adviser with

respect to the exercise of the constitutional or legal powers of the

office." Id. That exemption, however, does "not include employees

subject to the civil service laws of a State government, governmental

agency or political subdivision." Id. (emphasis added); see, e.g.,

Brewster v. Barnes, 788 F.2d 985, 989-90 & n.7, 992 (4th Cir. 1986)

(noting dispositive nature of civil service protection under Title VII

and Equal Pay Act definitions of employee); Halloway v. Milwaukee

County, 180 F.3d 820, 828 n.10 (2d Cir. 1999) (finding, under essentially identical Age Discrimination in Employment Act definition,

that coverage of commissioner position by civil service laws precluded exemption under statute). 

During the relevant time period, the Baltimore City Charter provided that civil service positions "shall be classified with reference to

4 BURTNICK v. MAYOR AND CITY COUNCIL OF BALTIMORE
the examinations hereinafter provided for, as Exempt, Competitive,

Non-Competitive and Labor Class" and that all of "[t]he offices and

positions so classified by the Commission shall constitute the Classified Civil Service[.]" Charter of Baltimore City, Art. VII, § 110 (1964

Revision, with amends. to Jan. 1, 1993). It further provided that "[t]he

Exempt Class of the Classified Civil Service shall include all offices

or positions, except those of laborers, for the filling of which competitive or non-competitive examinations shall be decided by the Commission to be impracticable." Id. § 111. Civil Service Rule 6A also

provided that "[t]he Exempt Class shall contain those positions for

which the Commission has determined that examinations are impracticable." In sum, under the Charter and applicable rule, the civil service laws covered the "Exempt Class" positions, even those positions

exempt from examinations. 

Moreover, the City Charter provided that the position at issue in

this case, in all three of its permutations, was included within the civil

service. At the time of his termination on July 1, 1992, Burtnick held

the Assistant Comptroller position. The City had placed that position

in the "Exempt Class" of its civil service system in April 1992, but

the City never exempted the position from its civil service laws. On

July 1, 1992, the City abolished the Assistant Comptroller position

and created the successor Administrative Officer III position, which

Goodman held from July 1-August 9, 1992. The City concedes that

the Administrative Officer III position was not exempt from the City

civil service laws. On August 10, 1992, the City abolished the Administrative Officer III position and reclassified it as Executive Assistant

to the Comptroller. The City placed this new position in the "Civil

Service Exempt Class," but again the City never exempted the position from its civil service laws. Accordingly, the position at issue here

— in all of its permutations — was subject to the City civil service

laws and thus to the requirements of Title VII. 

Finally, we note, notwithstanding the City’s suggestion, that the

district court never found to the contrary. As set forth above, the district court, in granting partial summary judgment did state: "What

remains, then, is plaintiff’s claim that he was not hired for the scheduled position of Administrative Officer III (which was later translated

to the exempt position of Executive Assistant to the Comptroller), on

BURTNICK v. MAYOR AND CITY COUNCIL OF BALTIMORE 5
account of his race and/or sex." Burtnick, 953 F. Supp. at 124.* In this

passage the court did not find that the Executive Assistant position

was exempt from the City civil service laws or Title VII, but only that

it was an "exempt position" under the City civil service laws. Other

references in the opinion to the position change clarify this point. See,

e.g., id. at 125 (noting, in a discussion regarding evidence of a legitimate non-discriminatory reason for the employment decision, that the

Administrative Officer III position "was reclassified to noncompetitive status, under the title ‘Executive Assistant to the Comptroller,’ although it entailed essentially the same old duties"). 

III.

For all of these reasons, the judgment of the district court is 

AFFIRMED.

*One district judge presided over the substantial pre-trial matters.

Because of a scheduling conflict, another judge presided over the trial

and made the damages award. In making the back pay award, the trial

judge may have misunderstood the quoted statement. 

6 BURTNICK v. MAYOR AND CITY COUNCIL OF BALTIMORE