Beesley v. Hartford Fire Ins. Co.

• Decision Date: 19 October 1989
• Docket Number: Civ. A. No. 89-AR-1062-S.
• Citation: 723 F. Supp. 635
• Parties: Anita A. BEESLEY, Plaintiff, v. The HARTFORD FIRE INSURANCE COMPANY, etc., et al., Defendants.
• Court: U.S. District Court — Northern District of Alabama

723 F. Supp. 635

Anita A. BEESLEY, Plaintiff, v. The HARTFORD FIRE INSURANCE COMPANY, etc., et al., Defendants.

Civ. A. No. 89-AR-1062-S.

United States District Court, N.D. Alabama, S.D.

October 18, 1989.

As Amended October 19, 1989.

COPYRIGHT MATERIAL OMITTED

Robert Moore Weaver, John Lee Quinn, Longshore, Nakamura & Quinn, Birmingham, Ala., for Anita A. Beesley.

Augusta S. Dowd, Lange, Simpson, Robinson & Somerville, Birmingham, Ala., for Hartford Ins. Group.

J. Mark White, White, Dunn & Booker, Birmingham, Ala., for Robert Walters.

MEMORANDUM OPINION

ACKER, District Judge.

Defendant, Hartford Insurance Group, filed an application for reconsideration of the order and opinion entered by this court on August 14, 1989, denying Hartford's motion to strike the jury demand of plaintiff, Anita Beesley. Beesley v. The Hartford Fire Insurance Company, 717 F.Supp. 781, (N.D.Ala.1989). The hereinafter opinion should be read as an addendum to, or expansion of, that earlier opinion.

Not only have the parties themselves more thoroughly briefed the subject in light of the court's opinion of August 14, 1989, but the court has received and carefully considered several excellent amici curiae briefs on both sides of the question. Against trial by jury in Title VII cases appear USX Corporation, Equal Employment Advisory Council of Washington, D.C., which describes itself as "a nationwide association of employers and trade associations," and the Equal Employment Opportunity Commission. This is an interesting alliance of amici on behalf of defendant Hartford. For trial by jury in Title VII cases appear Eugene W. Fuquay, a sole practitioner in Birmingham, Alabama, formerly associated with the EEOC, and also the law firm of Chestnut, Sanders, Sanders, Turner, Williams & Pettaway, Alabama's largest black firm, with offices in Selma and Birmingham, as amici on behalf of the plaintiff. The court deeply appreciates the assistance which these briefs have provided.

While the sources of the various amici briefs (except, perhaps, the EEOC brief) indicate what the two basic protagonists would like for the law to be on the subject, as good an indicator of preference is the fact of which this court takes judicial knowledge, namely, that as of September 19, 1989, there were 23 cases pending in this very court in which the plaintiff had invoked Title VII and requested a jury trial.¹ It is probable that some of these cases involve claims in addition to claims brought expressly pursuant to Title VII, but it is significant that such a large number of pending cases involving Title VII contain a plaintiff's jury demand. This fact tends to prove that this court was correct in its opinion of August 14, 1989, in concluding that the "plaintiff versus defendant" attitude toward jury trial in Title VII cases has reversed itself since 1964.

A Question Deserving Reevaluation

Not just because this court's opinion of August 14, 1989, has created a considerable amount of academic discussion, and even hot debate, but because the issue is a serious one with far-reaching ramifications, this court willingly undertakes another look at the question and, enlightened by the new briefs, will attempt to dig a little deeper than it did on August 14, 1989.

The Constitutional Provision

The Seventh Amendment is simple and straightforward. Without it and the nine other amendments which constitute the Bill of Rights, historians unanimously agree that the Constitution never would have been ratified. The Seventh Amendment provides:

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.

Rule 38(a), Federal Rules of Civil Procedure

As authorized by 28 U.S.C. § 2072, the Supreme Court promulgated Rule 38(a), F.R.Civ.P., which provides:

The right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States shall be preserved to the parties inviolate.

A synonym for the word "inviolate" is "unprofaned." This necessarily implies that the right to trial by jury shares that certain sanctity which permeates the entire Bill of Rights.

What Title VII Itself Says and Does Not Say

The amicus brief filed by USX argues that Title VII by its express language precludes trial by jury. The argument is based on Title VII's enforcement provision, which contains the following language:

If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice), or any other equitable relief as the court deems appropriate.

42 U.S.C. § 2000e-5(g) (1981) (emphasis USX's).

USX argues that the use of the word "court" proves that Congress intended for the "judge" and not a "jury" to decide all Title VII issues. While there are decisions cited by USX for the proposition that the word "court" means "judge," there are just as many persuasive authorities for the proposition that the word "court" includes a combination of the persons, including juries, who decide issues in the context of a courtroom. See McDonald v. Swope, 79 F.Supp. 30, 35 (M.D.Cal.1948); In re Caruba, 139 N.J.Eq. 404, 51 A.2d 446 (1947); State ex rel Harp v. Vanderburgh Circuit Court, 227 Ind. 353, 85 N.E.2d 254 (1949); Peisker v. Chavez, 46 N.M. 159, 123 P.2d 726, 728 (1942). It is, of course, true, as pointed out by USX, that some courts employed this language in § 2000e-5(g) as a means for construing the statute early on to preclude trial by jury. Cheatwood v. S. Cen. Bell Tel. & Tel. Co., 303 F.Supp. 754, 755-56 (M.D.Ala.1969); Hayes v. Seaboard Coastline R.R., 46 F.R.D. 49, 52-53 (S.D. Ga.1969); and Culpepper v. Reynolds Metals Co., 296 F.Supp. 1232, 1235 (N.D.Ga. 1969), rev'd on other grounds, 421 F.2d 888 (5th Cir.1970). Significant, if humorously ironic, the employer demanded the jury in all three of these cases cited here by an amicus employer. These cases were decided in the very early, tentative, years of the Civil Rights Act of 1964. Out of these cases, however, grew the pervasive assumption, never adopted nor confirmed by the Supreme Court, that neither party is entitled to trial by jury in a Title VII case. Even USX concedes, at p. 10 of its brief:

The absence of a statutory right to trial by jury does not necessarily preclude a finding that the Seventh Amendment right extends to actions brought pursuant to Title VII.

What the Supreme Court Has Said and Has Not Said

Long after Title VII had been construed by several lower federal courts to preclude jury trial because of the statutory reference to "court," the Supreme Court was called upon to decide whether or not the Age Discrimination in Employment Act requires trial by jury, even though Congress in the ADEA did not speak to the issue any more than it did in Title VII. The pertinent portion of that Act was, for all intents and purposes, identical to the language of Title VII relied upon by Hartford and USX. It provides in its enforcement section:

In any action brought to enforce this chapter the court shall have jurisdiction to grant such legal or equitable relief as may be appropriate to effectuate the purposes of this chapter, including without limitation judgments compelling employment, reinstatement or promotion, or enforcing the liability for amounts deemed to be unpaid minimum wages or unpaid overtime compensation under this section.

29 U.S.C. § 626(b) (emphasis supplied).

Interpreting this statute, which certainly authorizes equitable relief, the Supreme Court quickly gave the word "court" a broader meaning than "judge." In Lorillard v. Pons, 434 U.S. 575, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978), Justice Marshall, writing for the Court, held that the ADEA does provide a right to trial by jury. In that case, the plaintiff had sought both reinstatement and lost wages. The Court carefully avoided purporting to decide the question of entitlement to jury trial in Title VII cases, by saying:

We, of course, intimate no view as to whether a jury trial is available under Title VII as a matter of either statutory or constitutional right.

Lorillard 434 U.S. at 583-4, 98 S.Ct. at 872.

Nevertheless, the rationale employed by the unanimous Court in Lorillard very well fits Title VII. Justice Marshall proceeded to say that ADEA provides for "legal" relief in the form of back wages, thus arguably triggering the absolute right to jury trial under the Seventh Amendment. He followed this by saying that Congress "did not authorize `legal' relief in so many words under Title VII." Id. at 584, 98 S.Ct. at 872 (emphasis supplied). This language is susceptible to being read as an implicit recognition by Justice Marshall that a claim for "back wages" constitutes, "in so many words, legal relief." By the simple device of characterizing a remedy as "legal" in one statute and as "equitable" in another statute, Congress, if permitted to do so, could simultaneously abrogate the Seventh Amendment and Rule 38(a), F.R. Civ.P., in any newly created cause of action. It is at this point where the battle lines must be drawn.

The amici employers here argue that all Title VII relief has been declared "equitable," while the amici employees respond, "How can that be"? Long before the present Supreme Court's Tull v. United States, 481 U.S. 412, 107 S.Ct. 1831, 95 L.Ed.2d 365 (1987), and Granfinanciera S.A. v. Nordberg, 492 U.S. ___, 109 S.Ct. 2782, ...