Stender v. Lucky Stores, Inc., C-88-1467 MHP.

Decision Date07 January 1992
Docket NumberNo. C-88-1467 MHP.,C-88-1467 MHP.
PartiesNancy J. STENDER, Diane Skillsky, Julie Valentine-Dunn, Reba Barber-Money, Irma Hernandez, Anita Martinez and Jon Gold on behalf of themselves and all other similarly situated, Plaintiffs, v. LUCKY STORES, INC., Defendant.
CourtU.S. District Court — Northern District of California

Brad Seligman, Jocelyn D. Larkin, Donna M. Ryu, Saperstein, Seligman & Mayeda, Oakland, Cal., for plaintiffs.

Kirby Wilcox, Kathleen V. Fisher, James E. Boddy, Jr., Portia R. Moore, Morrison & Foerster, San Francisco, Cal., for defendant.

AMENDED MEMORANDUM AND ORDER

PATEL, District Judge.

Plaintiffs have brought this class action against Lucky Stores, Inc. on behalf of Black and female employees working in retail stores within Lucky's Northern California Food Division. Plaintiffs allege discrimination on the basis of race and sex in initial job placement, allocation of work hours, reclassification of part-time employees to full-time positions, and promotions. Claims are brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; 42 U.S.C. § 1981; and the California Fair Employment and Housing Act ("FEHA"), Government Code §§ 12900-12996.

On November 21, 1991 the President signed into law the Civil Rights Act of 1991. The Act "responds to recent decisions of the Supreme Court by expanding the scope of relevant civil rights statutes in order to provide adequate protections to victims of discrimination." Civil Rights Act § 3(4). The Civil Rights Act will affect the law in this case if it applies to cases which were pending at the time of its enactment. Plaintiffs contend that the Act is applicable to their claims while defendant argues that the provisions of the Act should not be applied to this case. The only case which this court has found which analyzes the question of the retroactivity of the 1991 Civil Rights Act in depth is Mojica v. Gannett Co., Inc., 779 F.Supp. 94 (N.D.Ill.1991).1 That court held that the Act was applicable to cases which were pending at the time of its enactment. For the following reasons, this court holds that the Civil Rights Act of 1991 is applicable to plaintiff's claims.

DISCUSSION
A. The Plain Language of the Act

"The starting point for interpretation of a statute `is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.'" Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 110 S.Ct. 1570, 1575, 108 L.Ed.2d 842 (1990) (quoting Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980)). The language of the 1991 Civil Rights Act indicates that the Act should apply to cases which were pending at the time of its enactment.

Section 402 of the 1991 Civil Rights Act provides:

(a) In General. — Except as otherwise specifically provided, this Act and the amendments made by this Act shall take effect upon enactment.
(b) Certain Disparate Impact Cases. — Notwithstanding any other provision of this Act, nothing in this Act shall apply to any disparate impact case for which a complaint was filed before March 1, 1975 and for which an initial decision was rendered after October 30, 1983.

The Ninth Circuit has stated that "the fact that Congress expressed its intention that a statute take effect upon enactment is some indication that it believed that application of its provisions was urgent." In re Reynolds, 726 F.2d 1420, 1423 (9th Cir. 1984). In Reynolds, the Omnibus Budget Reconciliation Act of 1981 was silent as to whether it should apply to cases which were pending when it was enacted. However, the court weighed the fact that the Act was to be effective upon enactment in favor of the Act's retroactive application.

More importantly, reading clauses (a) and (b) of section 402 together makes it clear that the 1991 Civil Rights Act applies to cases which were pending at the time of its enactment. Section 402(b) carves out an exception to the Act for the parties in the currently pending Wards Cove case.2 The Supreme Court has stated on many occasions that "no provision of a statute should be construed to be entirely redundant." See Kungys v. U.S., 485 U.S. 759, 778, 108 S.Ct. 1537, 1550, 99 L.Ed.2d 839 (1988); see also Arcadia v. Ohio Power Co., ___ U.S. ___, 111 S.Ct. 415, 419, 112 L.Ed.2d 374 (1990). If the Civil Rights Act only applied prospectively, section 402(b) of the Act would be meaningless. The Supreme Court has also expressed a hesitancy "to adopt an interpretation of a congressional enactment which renders superfluous another portion of that same law." Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825, 837, 108 S.Ct. 2182, 2189, 100 L.Ed.2d 836 (1988). In this case, the only interpretation of Section 402 that does not make clause (b) meaningless is that the Act is applicable to cases which were pending at the time of its enactment, with the exception of Wards Cove.3

The language of section 109 of the Act also supports interpreting the Act to apply retroactively. Section 109, which legislatively overrules E.E.O.C. v. Arabian American Oil Co., ___ U.S. ___, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991), provides:

(c) Application of Amendments. The amendments made by this section shall not apply with respect to conduct occurring before the date of the enactment of this Act.

Like section 402(b), section 109(c) would be meaningless unless the Civil Rights Act applies to cases which were pending at the time of its enactment.4

Accordingly, the court holds that the 1991 Civil Rights Act must be interpreted to apply to cases which were pending at the time it was enacted because that "construction is required ... by necessary implication." Nelson v. Ada, 878 F.2d 277, 280 (9th Cir.1989) (citing Bruner v. United States, 343 U.S. 112, 117 n. 8, 72 S.Ct. 581, 584 n. 8, 96 L.Ed. 786 (1952)).

B. The Legislative History of the Act

The legislative history of the 1991 Civil Rights Act does not contradict the fact that the plain language of the Act supports its retroactive application. See Kaiser, 110 S.Ct. at 1575. The statements and interpretive memoranda of different members of the House and Senate conflict on the question of retroactivity.5 An amendment which would have explicitly made the Act prospective was not offered,6 and the Justice for Wards Cove Workers Bill, which would explicitly make the Act retroactive, is still in committee.7 Thus, the legislative history of the Act does not weigh in favor of or against the retroactive application of the Civil Rights Act.8

Although the specific legislative history of the 1991 Civil Rights Act is unclear as to the propriety of its retroactive application, in general restorative legislation should be applied retroactively. Where "Congress enacts a statute to clarify the Supreme Court's interpretation of previous legislation thereby returning the law to its previous posture," the Act must be applied retroactively. Ayers v. Allain, 893 F.2d 732, 754-55 (5th Cir.), vacated on other grounds, 914 F.2d 676 (5th Cir.1990) (en banc), cert. granted on other grounds, ___ U.S. ___, 111 S.Ct. 1579, 113 L.Ed.2d 644 (1991). The Civil Rights Act reverses or modifies numerous recent Supreme Court cases including Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989);9Martin v. Wilks, 490 U.S. 755, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989);10Lorance v. AT & T Technologies, Inc., 490 U.S. 900, 109 S.Ct. 2261, 104 L.Ed.2d 961 (1989);11Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989);12 and West Virginia University Hospital, Inc. v. Casey, ___ U.S. ___, 111 S.Ct. 1138, 113 L.Ed.2d 68 (1991).13 Congress' clear intention was to undo the effects of these cases, which it believed were wrongly decided, and to restore civil rights law to its previous state. The restorative intent behind the 1991 Civil Rights Act can only be fully satisfied by applying it to cases which were pending at the time of its enactment.

With respect to the propriety of applying restorative legislation retroactively, the 1991 Civil Rights Act is similar to the Civil Rights Restoration Act of 1987. The purpose of the Civil Rights Restoration Act of 1987 was to overrule legislatively Grove City College v. Bell, 465 U.S. 555, 104 S.Ct. 1211, 79 L.Ed.2d 516 (1984), which limited the scope of Title IX. The Civil Rights Restoration Act was silent as to whether it was to be applied retroactively. However with only one exception, every court which has addressed the issue has held that the Act should apply to cases which were pending at the time of its enactment. See Lussier v. Dugger, 904 F.2d 661, 665 (11th Cir.1990) ("statutory changes that are procedural or remedial in nature apply retroactively."); Ayers v. Allain, 893 F.2d at 754-55; Leake v. Long Island Jewish Medical Center, 695 F.Supp. 1414, 1417 (E.D.N.Y. 1988), aff'd, 869 F.2d 130, 131 (2d Cir.1989) (per curiam); Bonner v. Arizona Dep't of Corrections, 714 F.Supp. 420, 422-23 (D.Ariz.1989). But see DeVargas v. Mason & Hanger-Silas Mason Co., 911 F.2d 1377 (10th Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 799, 112 L.Ed.2d 860 (1991).14 In this case, in addition to the express restorative purpose of the Civil Rights Act, the plain language of the Act also supports its retroactive application.

C. Presumption of Retroactivity

In addition, case law supports the retroactive application of the 1991 Civil Rights Act. The Supreme Court has acknowledged that there are two inconsistent lines of cases regarding what courts should do when the plain language and legislative history of a statute do not speak conclusively on the question of whether the statute is to be applied retroactively. Kaiser, 110 S.Ct. at 1577. One line of cases holds that "a court is to apply the law in effect at the time it renders its decision, unless doing so would result in...

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