963 F.2d 929 (7th Cir. 1992), 90-2660, Mozee v. American Commercial Marine Service Co.

Docket Nº:90-2660.
Citation:963 F.2d 929
Party Name:William O. MOZEE, Gregory L. Rankin, Frederick Williams, et al., Plaintiffs-Appellees, v. AMERICAN COMMERCIAL MARINE SERVICE COMPANY, Defendant-Appellant.
Case Date:May 07, 1992
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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963 F.2d 929 (7th Cir. 1992)

William O. MOZEE, Gregory L. Rankin, Frederick Williams, et

al., Plaintiffs-Appellees,



No. 90-2660.

United States Court of Appeals, Seventh Circuit

May 7, 1992

As Amended May 14 and May 18, 1992.

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Ronald E. Elberger, Mark R. Waterfill, Bose, McKinney & Evans, Mark W. Ford (argued), Johnson, Smith, Densborn, Wright & Heath, Indianapolis, Ind., Samuel G. Hayward, Levin & Hayward, Louisville, Ky., Jerry Ulrich, New Albany, Ind., for plaintiffs-appellees.

James S. Whitehead (argued), Sidley & Austin, Chicago, Ill., John K. Gordinier, Michael W. Lowe, Frank G. Simpson, III, Pedley, Ross, Zielke, Gordinier & Porter, Louisville, Ky., Lisa L. Fleming, American Commercial Marine Service Co., Jeffersonville, Ind., for defendant-appellant.

Before WOOD, Jr., [*] CUDAHY, and FLAUM, Circuit Judges.


HARLINGTON WOOD, Jr., Circuit Judge.

The Civil Rights Act of 1991, which furthers the protections against discrimination

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and harassment in the workplace, is undoubtedly an important step in protecting civil liberties. See Civil Rights Act of 1991, Pub.L. No. 102-166; § 102, 105 Stat. 1071 (U.S.C.S., Adv. Legis. Serv., Lawyers, Coop. Pub. Co.). Today this court is faced with the difficult task of deciphering to what extent the Civil Rights Act of 1991 is applicable to this case which was pending on appeal during its enactment.



This case was first filed in 1977. In Mozee v. Jeffboat, Inc., 746 F.2d 365 (7th Cir.1984) ("Mozee I "), we reversed a district court decision because the factual findings "were insufficient to permit meaningful appellate review." Mozee I, 746 F.2d at 367. Afterward, the district court issued several opinions on liability. In Mozee v. American Commercial Marine Service Co., 940 F.2d 1036 (7th Cir.1991) ("Mozee II "), this court accepted an interlocutory appeal in which defendant American Commercial Marine Service Company, Jeffboat Division ("Jeffboat"), contested liability findings in a civil rights suit brought under Title VII and Section 1981 of the 1964 Civil Rights Act.

This court issued Mozee II on August 14, 1991. In that decision we reversed both the individual plaintiffs' and the class-wide claims under Section 1981; we affirmed the plaintiffs' individual claims for violation of Title VII; we affirmed the class-wide Title VII claims based on Jeffboat's promotion practices; and we vacated and remanded the trial court's determinations with regard to the class-wide Title VII claims based on Jeffboat's discipline instructions. Mozee II, 940 F.2d at 1055.

On August 27, 1991, Jeffboat filed a petition for rehearing, and on August 28, 1991, the plaintiffs filed a petition for rehearing. While these petitions for rehearing were pending before this court, Congress passed the Civil Rights Act of 1991 ("1991 Civil Rights Act" or "1991 Act"). We asked the parties to file supplemental briefs discussing the possible applicability of the 1991 Civil Rights Act to this case. The plaintiffs filed their supplemental reply brief, the last of the supplemental briefs, on January 2, 1992. This supplemental decision discusses the extent to which the 1991 Civil Rights Act applies to the parties before this court.

The question of retroactivity in this case is two-fold. Our first level of inquiry is whether the 1991 Act applies in a manner that will change our decision in Mozee II. In other words, the first question is whether the 1991 Act applies retroactively on appeal. The second level of inquiry involves the applicability of the 1991 Act on remand. In Mozee II we vacated and remanded in part some of the district court's conclusions under Title VII. Now, in order to provide the district court with adequate guidance on remand, we must also consider to what extent the 1991 Civil Rights Act will apply to the issues remanded in Mozee II.

The plaintiffs assert in their supplemental briefs that the entire 1991 Act applies retroactively to this case. Jeffboat, on the other hand, argues that the entire 1991 Act is not applicable because the Act should only be applied prospectively. Neither side addresses whether the retroactive or prospective application of the provisions on remand should differ from the application on appeal.

The plaintiffs point to the following provisions of the 1991 Civil Rights Act as potentially applicable to this case: (1) Section 101(b), which expands the definition of what constitutes the making and enforcement of a contract for Section 1981 claims; (2) Sections 104 and 105, which pertain to the business necessity defense for disparate impact cases under Title VII; (3) Section 102, which makes compensatory and punitive damages available for intentional discrimination claims under Title VII; (4) Section 102(c), which pertains to the availability of a jury trial under Title VII. 1 See Pub.L. No. 102-166; 105 Stat. 1071.

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For the reasons explained below, we hold that the provisions of the 1991 Act apply prospectively on appeal. Likewise, the district court should not apply the 1991 Civil Rights Act when considering the issues remanded in Mozee II.



  1. Congressional Intent

    When congressional intent is clear as to the issue of prospective versus retroactive application, then this intent controls. Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 838, 110 S.Ct. 1570, 1577, 108 L.Ed.2d 842 (1990). However, whether Congress intended prospective or retroactive application of the 1991 Civil Rights Act cannot be deciphered from either the language of the statute or from the legislative history.

    Numerous courts have addressed the issue of whether the 1991 Civil Rights Act applies retroactively to pending cases. The courts have various views on the issue of legislative intent. For example, compare Fray v. The Omaha World Herald Co., 960 F.2d 1370, 1378 (8th Cir.1992) (legislative history indicates an intent to apply the Act prospectively); Vogel v. Cincinnati, 959 F.2d 594, 597 (6th Cir.1992) (no clear legislative intent can be deciphered from the statutory language or legislative history); High v. Broadway Ind., Inc., 1992 WL 33860, *1, 1992 U.S.Dist. LEXIS 446, * 1 (W.D.Mo. Jan. 7, 1992) (same); Hansel v. Public Serv. Co., 778 F.Supp. 1126, 1136 (D.Colo.1991) (same); Stender v. Lucky Stores, Inc., 780 F.Supp. 1302, 1306 (N.D.Cal.1992) (statute's language evinces a legislative intent to apply the 1991 Civil Rights Act retroactively to pending cases); Stevens v. Mann, 57 Fair Emp.Prac.Cas. 1290, 1291, 1992 WL 101764 (S.D.Tex.1992) (1991 Civil Rights Act's language and legislative history indicate a congressional intent not to retroactively apply its provisions). Even in face of these divergent opinions with regard to whether the language or the legislative history indicates a clear intent on this issue, both the plaintiffs and Jeffboat argue the legislative intent is clear, and, of course, both offer diametrically opposed interpretations of this so-called "clear" legislative intent.

    President Bush signed the 1991 Civil Rights Act into law on November 21, 1991. Section 402(a) of the 1991 Civil Rights Act provides: "Except as otherwise specifically provided, this Act and the amendments made by this Act shall take effect upon enactment." Pub.L. No. 102-166, § 402(a), 105 Stat. 1071. The fact that the 1991 Act becomes effective on the date of enactment provides no guidance as to whether the Act applies to pending cases. Indeed, this clause is susceptible to several interpretations: it might mean that the 1991 Act applies to conduct which occurred after the enactment, it might mean that the Act applies to cases filed after the enactment, it might mean that the Act applies to all proceedings beginning after the enactment, it might mean that the Act's provisions apply to all pending cases at any stage of the proceedings, or it might mean that the Act's procedural provisions apply to proceedings begun after enactment and the substantive provisions apply to conduct that occurs after the enactment. Considering this array of possible interpretations, Section 402(a) provides no guidance as to whether Congress intended the Act to apply prospectively or retroactively to cases pending on appeal or cases remanded to the district court.

    The plaintiffs argue, however, that the 1991 Act as a whole indicates that Congress intended a retroactive application of the statute. As support for this argument the plaintiffs point to Section 402(b) of the Act, which states, "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." Pub.L. No. 102-166, § 402(b), 105 Stat. 1071. Plaintiffs argue that because this provision specifically excepts a special

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    category of cases from retroactive application, this implies that Congress intended the remainder of the Act to apply retroactively. However, it is fairly clear from the legislative history that this exception was placed in the statute to ensure that the Act's provisions would not apply to the parties in Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989), a disparate impact case in litigation for approximately twenty-five years. 2 Therefore, Section 402(b) is nothing more than a clear assurance that courts would not apply the 1991 Act to the Wards Cove litigation regardless of how the courts might eventually construe the 1991 Act's applicability to pending cases.

    Plaintiffs also point to Section 109(c) which specifically states that the section's provisions...

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