Baynes v. AT & T Technologies, Inc.

• Citation: 976 F.2d 1370
• Decision Date: 20 October 1992
• Docket Number: No. 91-8488,91-8488
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Parties: 61 Fair Empl.Prac.Cas. (BNA) 400, 60 Empl. Prac. Dec. P 41,842 Trina L. BAYNES, Plaintiff-Appellant, v. AT & T TECHNOLOGIES, INC., Tony Gasaway, Defendants-Appellees. Non-Argument Calendar.

Page 1370

976 F.2d 1370

61 Fair Empl.Prac.Cas. (BNA) 400,

60 Empl. Prac. Dec. P 41,842

Trina L. BAYNES, Plaintiff-Appellant, v. AT & T TECHNOLOGIES, INC., Tony Gasaway, Defendants-Appellees.

No. 91-8488

Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

Oct. 20, 1992.

Gavin S. Appleby, Weyman T. Johnson, Jr., Paul, Hastings, Janofsky & Walker, Atlanta, Ga., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before FAY, EDMONDSON and DUBINA, Circuit Judges.

PER CURIAM:

This case presents the question whether certain parts of the Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071 (1991), apply retroactively to cases in which the district court had rendered judgment before the Act's pertinent effective date. ¹ Appellant Trina Baynes sued her former employer AT & T under Title VII, Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Her claims included retaliatory discharge, discriminatory denial of promotion, racial harassment, and sexual harassment. Baynes brought identical claims under 42 U.S.C. § 1981, ² plus tort claims under Georgia law. Only her Title VII racial and sexual harassment claims survived AT & T's motion for summary judgment. After a bench trial, the district court entered judgment in favor of AT & T on those two remaining Title VII claims as well. Baynes appeals those judgments and contends she is entitled retroactively to rights contained in the Civil Rights Act of 1991, which Congress enacted during the pendency of this appeal. She asks us to grant her a jury trial on all her claims, to vacate the summary judgment order and to reinstate her section 1981 claims. We affirm.

I.

Baynes argues two ways in which retroactive application of the Act would entitle her to relief. Section 101 of the Act defines the phrase "make and enforce contracts" to include the "making, performance, modification, and termination of contracts." Baynes correctly notes that the magistrate's recommendation to dismiss Baynes' section 1981 claims relied on Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), which limited the applicability of 42 U.S.C. § 1981 to conduct during contract formation or enforcement. Id. 491 U.S. at 176, 109 S.Ct. at 2372. Baynes' allegations of harassment, retaliation and discriminatory denial of promotion all concern post-hiring activity and would not be actionable under the Patterson interpretation of section 1981. Baynes argues that section 101 of the Act retroactively reverses Patterson, and that therefore we must reinstate her section 1981 claims. Baynes also argues that section 102 of the Act retroactively entitles her to a jury trial.

The Civil Rights Act of 1991 does not say whether it applies retroactively or prospectively. Congress considered, but never agreed on, the retroactivity issue. For background, see Fray v. Omaha World Herald Co., 960 F.2d 1370 (8th Cir.1992); Mozee v. American Commercial Marine Service Co., 963 F.2d 929 (7th Cir.1992); Luddington v. Indiana Bell Telephone Co., 966 F.2d 225 (7th Cir.1992). Supreme Court precedent offers little more help than does the Act and its legislative history. The Court has so far declined to resolve the conflict in its own rules on presumptions of statutory retroactivity. Compare Bradley v. School Board of Richmond, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016 (1974) (presumption of retroactivity), with Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208, 109 S.Ct. 468, 471, 102 L.Ed.2d 493 (1988) (presumption of prospectiveness); see also Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 837, 110 S.Ct. 1570, 1577, 108 L.Ed.2d 842 (1990) (declining to resolve the "apparent tension" between the Bradley and Bowen lines of cases).

II.

Our own decisions on retroactivity questions have applied the Bradley analysis. See Federal Deposit Ins. Corp. v. 232, Inc., 920 F.2d 815, 818 n. 4 (11th Cir.1991) (providing several examples of this circuit's use of the Bradley analysis). In United States v. Peppertree Apartments, 942 F.2d 1555, 1561 n. 3 (11th Cir.1991), we indicated that we will continue to apply the Bradley analysis unless and until directed otherwise by the United States Supreme Court or the Eleventh Circuit en banc. ³ But our recent decision in Wright v. Director, Federal Emergency Management Agency, 913 F.2d 1566, 1573 (11th Cir.1990), expressly recognized the restatement in Bowen of the "longstanding rule of statutory construction" favoring prospective application of statutes and the conflict Bowen and Bradley present. In Wright we declined to apply retroactively the regulation at issue because we reached the same result--prospective application only--under both the Bowen and Bradley approaches. Id.

Here, too, we conclude that the Civil Rights Act of 1991 applies only prospectively under both the Bowen and Bradley analyses. Under Bowen, we need look no further than the statute itself. The Civil Rights Act of 1991 contains no hint that it is to apply retroactively. Absent language requiring retroactive application, the Act cannot be construed to have retroactive effect. Bowen, supra, 488 U.S. at 208, 109 S.Ct. at 471. The benefits of the Bowen rule rise in stark relief in this case. Under the traditional rule disfavoring retrospective application of statutes, the judicial branch cannot unilaterally craft into statutes provisions which Congress plainly did not agree to enact into law. Also, people may conform their present conduct to existing rules of law without the risk of retrospective liability or increased penalties.

The Bradley presumption is just the opposite of that in Bowen. See Kaiser Aluminum & Chemical Corp., supra, 494 U.S. at 854, 110 S.Ct. at 1586 (Scalia, J., concurring). Under Bradley, we presume a statute applies retroactively "unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary." Bradley, supra, 416 U.S. at 711, 94 S.Ct. at 2016. To determine whether "manifest injustice" would result, we look at three elements: "(a) the nature and identity of the parties, (b) the nature of their rights, and (c) the nature of the impact of the change in law upon those rights." Id. at 717, 94 S.Ct. at 2019. These considerations lead us to conclude that retroactive application of the Civil Rights Act of 1991 would result in manifest injustice under the Bradley standard and that the Act, therefore, applies only prospectively.

The first element, the nature of the parties, "arises from the distinction ... between private disputes and 'great national concerns.' " U.S. v. Marengo County Comm'n, 731 F.2d 1546, 1554 (11th Cir.1984). Every federal law is, in a sense, a statement of national policy and is important. But to be a matter of great national concern for Bradley requires something special. ⁴ The dispute between appellant and AT & T is a dispute between private persons concerning the rights and obligations involved in their private employment relationship. Cf. Bradley, supra, 416 U.S. at 718, 94 S.Ct. at 2019-20 (plaintiff sued publicly funded governmental entity as a private attorney general); see also Peppertree, supra, 942 F.2d at 1561 (dispute involved administrative agency of federal government; issue of utilization of private industry for low income housing was issue of national concern). Given the private nature of the parties in most employment discrimination cases, we think these cases, when viewed one by one, are not "great national concerns" under Bradley, but rather are "private cases between individuals." Bradley, supra, 416 U.S. at 717, 94 S.Ct. at 2019. This consideration supports only prospective application of the Act.

Second we consider the nature of the parties' rights. Bradley directs us to "refus[e] to apply an intervening change to a pending action where ... to do so would infringe upon or deprive a person of a right that had matured or become unconditional." Bradley, supra, 416 U.S. at 720, 94 S.Ct. at 2020. Our own cases have tried to distinguish changes affecting substantive rights from those affecting purely remedial or procedural rights. U.S. v. Fernandez-Toledo, 749 F.2d 703, 705 (11th Cir.1985) ("new statutes that affect antecedent rights will not apply retroactively while those that affect only procedure or remedy will apply retroactively.") (citations omitted). Statutory provisions affecting "substantive" and "unconditional rights upon which the parties relied" weigh against retroactivity. See, e.g., Wright v. Director, Federal Emergency Management Agency, 913 F.2d 1566, 1574 (11th Cir.1990) (insurance policies created an unconditional contractual relationship, so that intervening regulatory amendment of insurance policy exclusion clause did not apply retroactively). But if statutory changes in the parties' rights are purely "remedial" or procedural in nature, that fact weighs in favor of retroactive application. See, e.g. U.S. v. Peppertree Apartments, 942 F.2d 1555, 1561 (11th Cir.1991) (intervening statutory amendment authorizing double damages was "remedial in nature" and thus applied retroactively) (citations omitted); Delmay v. Paine Webber, 872 F.2d 356 (11th Cir.1989) (statutory amendment allowing appeal from order refusing stay of action in favor of arbitration applied retroactively).

The changes in earlier law effected by the Civil Rights Act of 1991 encompass "substantive" as well as what might be seen as "procedural" or "remedial" rights. The Act expressly creates new damage remedies and jury trial rights in certain cases of unlawful discrimination. Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071, § 102 (1991). The Act also expands certain plainly substantive rights, among these the extension of rights under 42 U.S.C. § 1981 to post-formation contractual relationships. ⁵ Id. at § 101. Appellant argues that both the Act's jury trial right and its expansion of...