40 F.3d 187 (7th Cir. 1994), 93-3110, Alexander v. Gerhardt Enterprises, Inc.
| Citation | 40 F.3d 187 |
| Party Name | Johnnye ALEXANDER, Plaintiff-Appellee, v. GERHARDT ENTERPRISES, INC., an Illinois Corporation, d/b/a Bailey's Professional Beauty Supply, Defendant-Appellant. |
| Case Date | November 14, 1994 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Seventh Circuit |
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Argued Sept. 12, 1994.
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[Copyrighted Material Omitted]
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Eugene J. Schiltz, Kenneth Philip Ross (argued), Coleman & Associates, Chicago, IL, for plaintiff-appellee.
Walter Soroka, Jerome Rotenberg (argued), Rosenfeld, Rotenberg, Hafron & Shapiro, Chicago, IL, for defendant-appellant.
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Before GODBOLD, [*] FLAUM and ROVNER, Circuit Judges.
FLAUM, Circuit Judge.
Plaintiff, Johnnye Alexander ("Alexander"), a black woman, filed this employment discrimination claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e. She alleged that the defendant corporation, Gerhardt Enterprises ("Gerhardt"), terminated her employment on account of her race and in retaliation for her opposition to her employer's discriminatory conduct. After the enactment of the Civil Rights Act of 1991 ("1991 Act"), 42 U.S.C. Sec. 1981a, Alexander filed an amended complaint that added an additional count under 42 U.S.C. Sec. 1981, demanded a jury trial, and requested additional relief on the initial Title VII count. The district court dismissed the Sec. 1981 count and struck the claims for compensatory and punitive damages. After a two day trial the jury returned a verdict for Alexander and awarded her $10,000 in back wages. The trial judge recognized that if the 1991 Act was not given retroactive application, Alexander would have had no right to a jury trial. Consequently, the district court announced its own independent findings. On July 16, 1993, the district court entered judgment for Alexander based on its own findings and not the jury verdict, awarding back wages, costs and attorney's fees. On August 3, 1993, the court amended the July 16 judgment to reflect a jury verdict instead of a decision by the court. The defendant appeals, challenging the trial by jury, amount of attorney's fees, and the sufficiency of the evidence. We affirm the district court's decision of July 16, 1993 and vacate the August 3, 1993 order.
I.
Gerhardt Enterprises, an Illinois corporation operating under the trade name "Bailey's Professional Beauty," sells and distributes hair styling and cosmetic products to professional hair styling salons and cosmetologists. Gerhardt also provides educational programs and seminars to beauty professionals. Gerhardt hired Alexander on March 29, 1989, as an educational coordinator for its professional education program.
On July 7, 1989, Alexander, as part of her duties, attended a small company meeting at one of the company's stores. Also present at the meeting were Dominic Marella ("Marella"), Gerhardt's educational director and Alexander's direct supervisor; Loretta Masson ("Masson"), Marella's assistant; Jerome Sikorski ("Sikorski"), defendant's director of wholesale operations and a member of its core management team; Walter Gerhardt, Jr. ("Gerhardt, Jr."), Gerhardt's vice-president; and three regional managers. Walter Gerhardt, Sr. ("Gerhardt, Sr.") was also present during portions of the meeting. Alexander was the only black person at the meeting. During the meeting Marella discussed an education event he had recently attended which had been conducted by a hair styling educator who was black. While discussing a procedure related to a type of curl on Caucasian hair, Marella commented that it was a very simple process and "if a nigger can do it, anybody can do it." At trial, the parties offered conflicting testimony as to whether Marella was offering his own opinion or simply quoting the black educator. After a brief pause in the meeting and several uncomfortable moments, the meeting continued.
When the meeting concluded, everyone except Alexander went to lunch. After lunch Marella apologized in private to Alexander for making the statement. Alexander requested that he make a public apology. The next day Marella wrote a memorandum to Gerhardt, Jr. informing him of the particular incident. On July 26, 1989, Alexander responded to this memorandum with her own memorandum to Marella, with copies to Gerhardt Sr., Gerhardt, Jr. and Sikorski. Alexander explained in this memorandum that she had been "hurt deeply" by the racist slur and requested a public apology. After receiving the memorandum Sikorski, the Gerhardts and Marella met to discuss the situation.
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The following day, on July 27, Sikorski and Marella met with Alexander after an education department meeting. Sikorski informed Alexander that she would have to attend an event in St. Louis on a day he had previously agreed to let her have off to visit her mother in Tennessee. Alexander indicated she would comply with the request. Sikorski then commented that Alexander did not seem happy with her job and that they were not happy with her performance. Sikorski, concluding that it would be best if the employment relationship was terminated, fired Alexander. After receiving her letter of termination, Alexander refused to sign it.
On November 1, 1989, Alexander filed a pro se discrimination charge with the Illinois Department of Human Rights, which was automatically cross-filed with the Equal Employment Opportunity Commission. In December, 1989, Sikorski sent a letter to the managers of Gerhardt's twenty three retail stores, asking them to summarize any problems or difficulties they may have had with Alexander. Sikorski instructed his managers not to date these responses. After receiving the replies, Sikorski backdated the three negative evaluations of Alexander.
Alexander received her Notice of Right to Sue from the EEOC on July 19, 1991. On July 25, 1991, she filed a single count Complaint under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e, alleging that she was terminated because of her race and in retaliation for her opposition to Marella's comment. After the enactment of the Civil Rights Act of 1991, Alexander moved for and, over the defendant's objection, was granted leave to file an amended complaint and demand for a jury trial. The First Amended Complaint added a second count under 42 U.S.C. Sec. 1981 and sought additional compensatory and punitive damages available under the 1991 Act on the Title VII count. On May 14, 1992, the trial court dismissed the second count in light of this Court's decision in Mozee v. American Commercial Marine Service Co., 963 F.2d 929 (7th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 207, 121 L.Ed.2d 148 (1992). On September 10, 1992, pursuant to its own motion, the district court struck the claims for compensatory and punitive damages in light of this Court's decision in Luddington v. Indiana Bell Telephone Co., 966 F.2d 225 (7th Cir.1992), cert. denied, --- U.S. ----, 114 S.Ct. 1641, 128 L.Ed.2d 362 (1994). The court did not, however, strike the jury demand.
On September 17, 1992, after a two day trial, the jury returned a verdict for $10,000 in back wages. After dismissing the jury, the district court announced its own findings. The court, recognizing the then undecided question of the retroactivity of the 1991 Act as it pertained to the availability of a jury trial in Title VII cases, issued independent findings of fact and conclusions of law. The judge concluded that Alexander was fired not because of her race, but in retaliation for her complaint. On July 16, 1993, after further briefing on additional back wages, front wages and attorney's fees, the court entered judgment based on its own decision, consistent with an "advisory" jury. The court awarded $10,000 in back wages, $3,294.95 in costs and $58,480.87 in attorneys' fees and ordered Gerhardt to provide Alexander with a neutral reference and to refrain from making any disparaging comments about her job performance. On August 3, 1993, the court, on its own motion, amended its July 16 judgment to reflect a jury verdict instead of a bench decision and deleted the word "advisory" from the July 16 memorandum opinion. Gerhardt appeals the use of an advisory jury, the amount of the attorneys' fees and the sufficiency of the evidence.
II.
We first address the district court's use of an advisory jury. The 1991 Act created a right to recover compensatory and punitive damages for certain violations of Title VII of the Civil Rights Act of 1964. Rev.Stat. Sec. 1977A(a), 42 U.S.C. Sec. 1981a(a), as added by Sec. 102 of the 1991 Act, Pub.L. 102-166, 105 Stat. 1071. Unlike the 1964 Civil Rights Act, which gave no right to a jury trial, see Lehman v. Nakshian, 453 U.S. 156, 164, 101 S.Ct. 2698, 2703-04, 69 L.Ed.2d 548 (1981) ("there is no right to trial by jury in cases arising under Title VII"); Great Am. Fed. Sav. & Loan Ass'n v. Novotny, 442 U.S. 366, 375, 99 S.Ct. 2345, 2350, 60 L.Ed.2d 957
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(1979), the 1991 Act also allows any party to demand a trial by jury if compensatory and punitive damages are sought. Rev.Stat. Sec. 1977A(c), 42 U.S.C. Sec. 1981a(c), as added by Sec. 102 of the 1991 Act. However, the 1991 Act, including its provision allowing trial by jury of Title VII claims, 42 U.S.C. Sec. 1981a(c), does not apply to conduct that occurred before its enactment. Landgraf v. USI Film Products, --- U.S. ----, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994); Mojica v. Gannett Co., 7 F.3d 552 (7th Cir.1993) (en banc), cert. denied, --- U.S. ----, 114 S.Ct. 1643, 128 L.Ed.2d 363 (1994); see also Saxton v. American Tel. & Tel. Co., Inc., 10 F.3d 526, 536 n. 22 (7th Cir.1993). In this case, the alleged discriminatory conduct all occurred in 1989, well before the enactment of the 1991 Act. Thus, Alexander had no right to a jury trial.
We commend the late Magistrate Judge Weisberg's efforts to deal with the jury trial issue in the face of the legal uncertainty of the retroactivity of...
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