Sewell v. Jefferson County Fiscal Court

• Citation: 863 F.2d 461
• Decision Date: 06 February 1989
• Docket Number: Nos. 87-5254,87-5658,s. 87-5254
• Parties: 48 Fair Empl.Prac.Cas. 1166, 48 Empl. Prac. Dec. P 38,552, 12 Fed.R.Serv.3d 943 Linda SEWELL, Plaintiff-Appellant, v. JEFFERSON COUNTY FISCAL COURT; Mitchell McConnell; Carl Brown; Jim Malone; Sylvia Watson; Jefferson County Corrections Department; Richard Frey; Jeannette Priebe, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 461

863 F.2d 461

48 Fair Empl.Prac.Cas. 1166,

48 Empl. Prac. Dec. P 38,552, 12 Fed.R.Serv.3d 943

Linda SEWELL, Plaintiff-Appellant, v. JEFFERSON COUNTY FISCAL COURT; Mitchell McConnell; Carl

Brown; Jim Malone; Sylvia Watson; Jefferson

County Corrections Department; Richard

Frey; Jeannette Priebe,

Defendants-Appellees.

Nos. 87-5254, 87-5658.

United States Court of Appeals, Sixth Circuit.

Argued Jan. 15, 1988.

Decided Dec. 19, 1988.

Rehearing and Rehearing En Banc Denied Feb. 6, 1989.

Henry J. Curtis (argued), Louisville, Ky., for plaintiff-appellant.

W. Waverly Townes, R. Allen McCartney, Asst. Jefferson County Atty. (argued), Louisville, Ky., for defendants-appellees.

Before ENGEL, Chief Judge, ^* KENNEDY and KRUPANSKY, Circuit Judges.

KRUPANSKY, Circuit Judge.

The plaintiff-appellant in this case, Linda Sewell (plaintiff or Sewell), a white female, has appealed from the entry of final judgment in favor of the defendants-appellees (defendants) ¹ after a bench trial. Sewell had alleged racial and sexual discrimination in violation of Title VII of the Civil Rights Act, 42 U.S.C.A. Sec. 2000e et seq., and 42 U.S.C.A. Secs. 1981 and 1983; and that she had been deprived of a property interest in her position as a sergeant of the Corrections Department without due process of law in violation of Sec. 1983.

Sewell was a corrections officer employed by the Jefferson County Fiscal Court. She was appointed acting sergeant by the Jefferson County Corrections Department (Corrections Department) on January 4, 1980. On January 18, 1981, the Corrections Department promoted her to the position of a regular sergeant after completing a six month probationary period of service in that grade. On September 3, 1981, Sewell was demoted by the Corrections Department to the position of a corrections officer, because it had been erroneously concluded that her probationary period had not expired.

Sewell filed a charge of racial and sexual discrimination against the Corrections Department that same day, September 3, 1981, with the Equal Employment Opportunity Commission (EEOC). Sewell filed a second charge against the Corrections Department with the EEOC on September 14, 1981, alleging unlawful retaliation and demotion. The Secretary of the Fiscal Court, Richard Frey (Secretary or Frey), wrote Sewell on September 25, 1981, advising her that she had mistakenly been demoted on the erroneous assumption that she was still serving as a probationary employee. Frey retroactively reinstated Sewell on that date with full back pay.

Plaintiff was subjected to a second demotion by the Corrections Department on February 24, 1982 because she had permitted two inexperienced, untrained and unarmed female correction officers to supervise a newly opened wing of the correctional department for a period of nearly 45 minutes, although she was aware that the area in question had experienced inmate disorders several days previously. On the night in question, several inmates again had become unruly, and although no one was injured, the inmates refused to return to order until an armed officer arrived on the scene.

On February 22, 1982, Sewell's supervisor, Major Montgomery, a white male, recommended that she be demoted from sergeant to corrections officer as a result of the incident. Major Montgomery conferred with Sewell for some 30 minutes on that date, in the presence of another employee of the Department of Corrections, and advised her of both of the pending decision to demote her and of the reasons underlying that decision. ² Secretary Frey thereupon informed the plaintiff on February 24, 1982 that she was demoted, and advised her that she had the right to appeal the action to the Corrections Merit Board (Merit Board).

Sewell filed an appeal to the Merit Board, which unanimously rejected her challenge. Plaintiff did not further appeal the Merit Board's decision to either the Jefferson Circuit Court or the Jefferson County Fiscal Court, as provided by Kentucky statute, but rather filed the present suit in the United States District Court for the Western District of Kentucky on March 22, 1983. In her complaint, Sewell specifically requested a jury trial for all legal claims presented.

It is undisputed that the plaintiff had properly indorsed a request for a jury trial on the complaint in accordance with Federal Rule of Civil Procedure 38(b). ³ Following a pretrial conference on July 5, 1986, the court entered an order scheduling the case for a September 23, 1986 jury trial on all issues except plaintiff's claim under Title VII. During the final pretrial conference, conducted on September 15, 1986, counsel for Sewell orally requested a continuance of the September 23, 1986 jury trial date. The district court granted the motion and removed the case from the jury trial docket and continued the case on September 17, 1986 for trial before the court on January 22, 1987. ("IT IS ORDERED that this case be remanded from the trial calendar of September 23, 1986, and is continued to JANUARY 22, 1987, at 10:00 A.M. for a trial before the COURT.") (emphasis in original). Plaintiff's counsel made no objection to the court's order reassigning the case for trial before the court until the commencement of the January 22, 1987 trial.

On January 22, 1987, after the parties had announced that they were prepared to proceed with the trial, plaintiff's counsel requested the court to summon the jury. The court examined the order of September 17, 1986, and noted that it stated trial was to be before the court. After a discussion with counsel for the parties, the court concluded that Sewell had waived the right to trial by jury by failing to timely object to the court's September 17, 1986 order removing the case from the jury trial docket. The court proceeded to try all of Sewell's claims under Title VII, and Secs. 1981 and 1983. The court entered judgment for the defendants on all counts on February 4 1987 and filed a memorandum opinion and order on May 22, 1987.

On appeal, Sewell has argued that the district court erred by denying her fundamental constitutional right to a trial by a jury. See U.S. Const. amend. VII ("In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved...."); Fed.R.Civ.P. 38(a) ("The right of trial by jury as declared by the Seventh Amendment to the Constitution ... shall be preserved to the parties inviolate."); see also Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393, 57 S.Ct. 809, 811, 81 L.Ed. 1177 (1937); Bellmore v. Mobil Oil Corp., 783 F.2d 300, 306 (2nd Cir.1986). Although the right to a jury trial is guaranteed by the Constitution, "like other constitutional rights, can be waived by the parties." 9 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2321, at 101 (1971); see also Fed.R.Civ.P. 38(d), 39(a); United States v. Moore, 340 U.S. 616, 621, 71 S.Ct. 524, 526, 95 L.Ed. 582 (1951); Bellmore, 783 F.2d at 306. The standard for determining whether there has been a subsequent waiver of a jury trial, which had previously been timely entered pursuant to Federal Rule of Civil Procedure 38(a), is set forth in Federal Rule of Civil Procedure 39(a): ⁴

The trial of all issues so demanded shall be by jury, unless ... the parties or their attorneys of record, by written stipulation or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury....

Fed.R.Civ.P. 39(a); see also 9 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2332, at 108-09 (1971); compare Fed.R.Civ.P. 38(d) ("A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties."); 9 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2321, at 101-02 (1971).

The requirements of Rule 39(a) have "been interpreted broadly so as to encompass orders entered by the court and not objected to." Lovelace v. Dall, 820 F.2d 223, 227 (7th Cir.1987). In the instant case, the counsel for the plaintiff made an oral motion for a continuance of the trial date during the final pretrial conference on September 15, 1986. The court granted the motion orally, and then entered a written order on September 17, 1986 which stated that the case was continued until January 22, 1987 "for a trial before the court." The court's order of September 17, 1986 was binding upon all parties, see Fed.R.Civ.P. 16(e); Ghandi v. Police Dep't of Detroit, 823 F.2d 959, 962 (6th Cir.1987), cert. denied sub nom. Ghandi v. Fayed, --- U.S. ----, 108 S.Ct. 774, 98 L.Ed.2d 861 (1988); Daniels v. Board of Educ. of Ravenna School Dist., 805 F.2d 203, 209 (6th Cir.1986); accord Annot., Binding Effect of Court's Order Entered After Pretrial Conference, 22 A.L.R.2d 599, 601-03 (1952), and constituted a "sufficient entry in the record to satisfy the requirements of Fed.R.Civ.P. 39(a)." Fields Eng'g & Equip., Inc. v. Cargill, Inc., 651 F.2d 589, 592 (8th Cir.1981) (waiver contained in the court's order); see also Harden v. Adams, 760 F.2d 1158, 1166 (11th Cir.) (waiver contained in amended complaint and later orders of the court), cert. denied sub nom. Grimmer v. Harden, 474 U.S. 1007, 106 S.Ct. 530, 88 L.Ed.2d 462 (1985); Moser v. Texas Trailer Corp., 623 F.2d 1006, 1011 (5th Cir.1980) (amended complaint which provided for trial "without a jury" sufficient to waive jury trial); General Business Servs., Inc. v. Fletcher, 435 F.2d 863, 864 (4th Cir.1970) (order of court noting waiver of jury trial); accord Lovelace, 820 F.2d at 227 (pretrial minutes stating that jury demand withdrawn and matter set for bench trial; court decided there was no waiver based upon other grounds).

The plaintiff, however, has urged this court to find that the September 17, 1986 order was insufficient by itself to evidence a waiver of Sewell's right to a jury trial, charging that there was no record that the parties to this controversy had ever...