Chilton v. National Cash Register Company, Civ. No. 4363.

• Decision Date: 01 February 1974
• Docket Number: Civ. No. 4363.
• Citation: 370 F. Supp. 660
• Parties: William H. CHILTON. Plaintiff. v. NATIONAL CASH REGISTER COMPANY, Defendant.
• Court: U.S. District Court — Southern District of Ohio

370 F. Supp. 660

William H. CHILTON. Plaintiff. v. NATIONAL CASH REGISTER COMPANY, Defendant.

Civ. No. 4363.

United States District Court, S. D. Ohio, W. D.

February 1, 1974.

John B. Huber, Dayton, Ohio, for plaintiff.

Gordon H. Savage, Thomas J. Harrington, Dayton, Ohio, for defendant.

OPINION AND ORDER

CARL B. RUBIN, District Judge.

This matter is before the Court on plaintiff's demand for a jury trial made pursuant to Rule 38, Fed.R.Civ.P. Both parties have submitted memoranda on the issue raised, i. e., whether the right to a jury trial under the Seventh Amendment of the United States Constitution embraces an action for damages, lost wages and benefits, liquidated damages, costs and attorney fees brought under the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 (1970).

This question is one of first impression for this Court and neither the Court nor the parties have found precedential authority on this issue.¹ The touchstone to any analysis of the right to a jury trial is the Seventh Amendment which provides, in pertinent part: "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, . . ." The threshold inquiry, therefore, is whether the action at bar and the particular claim raised were maintainable at law in 1791, when the Seventh Amendment was enacted.² United States v. Louisiana, 339 U.S. 699, 706, 70 S.Ct. 914, 94 L.Ed. 1216 (1950); Barton v. Barbour, 104 U.S. 126, 133-134, 26 L.Ed. 672 (1881); Black v. Boyd, 248 F.2d 156, 161-162 (6th Cir. 1957); 5 Moore, Federal Practice ¶ 38.085, at 79 (2d ed. 1971).

This inquiry has evolved into a three-branch determination: (1) that the issue at bar is "legal" rather than "equitable" under pre-merger custom, (2) that the remedy sought is legal, not equitable, and (3) that the issue is triable to a jury given their practical abilities and limitations. Ross v. Bernhard, 396 U.S. 531, 538 n. 10, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970); see also Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S. Ct. 894, 8 L.Ed.2d 44 (1962); Beacon Theatres v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959); Farmers-Peoples Bank v. United States, 477 F.2d 752, 756-757 (6th Cir. 1973); Rogers v. Loether, 467 F.2d 1110 (7th Cir. 1972), cert. granted, 412 U.S. 937, 93 S. Ct. 2770, 37 L.Ed.2d 396 (1973); 9 Wright & Miller, Federal Practice & Procedure, Civil § 2302 (1971).

In the instant suit, plaintiff seeks damages for lost wages and benefits, liquidated damages, costs, and attorney fees for discriminatory termination of his employment because of his age, in contravention of 29 U.S.C. §§ 621-634 (1970). In approaching the right to a jury trial, the Supreme Court has mandated that the focus be upon "the nature of the issue to be tried rather than the character of the overall action." Ross v. Bernhard, supra, 396 U. S. at 538, 90 S.Ct. at 738. Further, where legal and equitable claims are joined in one action, now possible since the merger of law and equity in federal courts in 1938:

There is a right to jury trial on the legal claims which must not be infringed either by trying the legal issues as incidental to the equitable ones or by a court trial of a common issue existing between the claims.

Id. at 538, 90 S.Ct. at 738.

Turning to plaintiff's specific prayer for relief, we find that plaintiff seeks money damages for lost wages and benefits, a remedy which is traditionally legal in nature. Yet, a suit for damages does not per se invoke the Seventh Amendment right to a jury trial since Ross v. Bernhard has outlined a threepronged test. See also, Harkless v. Sweeny Independent Sch. District, 427 F.2d 319, 324 (5th Cir. 1970). Accordingly, this Court in Marr v. Rife, 363 F.Supp. 1362 (S.D.Ohio; Opinion of August 31, 1973) found that even though plaintiff sought only damages for housing discrimination, the claim was nevertheless equitable since 42 U.S. C. § 1982 and the Fair Housing Act of 1968, 42 U.S.C. § 3601 et seq. were fundamentally equitable. Accord, Cauley v. Smith, 347 F.Supp. 114 (E.D.Va.1972). But see Rogers v. Loether, supra; Kelly v. Armbrust, 351 F.Supp. 869 (D.N.D. 1972); Kastner v. Brackett, 326 F.Supp. 1151 (D.Nev.1971). Damages in housing discrimination cases were, under the pertinent statutory provisions, clearly part of the broad Congressional grant of equitable powers³ to federal courts to effectively remedy such discrimination. To the extent that Congress grants broad equitable powers to federal courts and to the extent that certain issues are to be tried to the court, not to the jury, this Court believes that Congress has eliminated the right to a jury trial on those issues or claims⁴ under the second and third branches of the Ross test.

In the case at bar, the anti-discrimination provisions of 29 U.S.C. §§ 621-634 (1970) do not so easily lend themselves to a general characterization. The operative enforcement section, 29 U.S.C. § 626, states:

b) The provisions of this chapter shall be enforced in accordance with the powers, remedies, and procedures provided in sections 211(b), 216 (except for subsection (a) thereof), and 217 of this title, and subsection (c) of this section. Any act prohibited under section 623 of this title shall be deemed to be a prohibited act under section 215 of this title. Amounts owing to a person as a result of a violation of this chapter shall be deemed to be unpaid minimum wages or unpaid overtime compensation for purposes of sections 216 and 217 of this title: Provided, That liquidated damages shall be payable only in cases of willful violations of this chapter. 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. Before instituting any action under this section, the Secretary shall attempt to eliminate the discriminatory practice or practices alleged, and to effect voluntary compliance with the requirements of this chapter through informal methods of conciliation, conference, and persuasion.

c) Any person aggrieved may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter: Provided, That the right of any person to bring such action shall terminate upon the commencement of an action by the Secretary to enforce the right of such employee under this chapter.

When Congress mandated that actions brought under § 626 were to be deemed actions under 29 U.S.C. §§ 216(b), 217,⁵ the right to a jury trial in § 626 actions necessarily became dependent on whether such right exists for § 216 or § 217 claims. Congress has given no other indication as to the right to jury trial in § 626 actions since it merely stated that this Court can "grant such legal or equitable relief as may be appropriate." 29 U.S.C. § 626(b) (1970).

It is well-settled that there is a right to a jury trial in § 216 actions, since Congress provided remedies only in the form of money damages for private suits brought under this section. McClanahan v. Mathews, 440 F.2d 320, 322 (6th Cir. 1971) (the Sixth Circuit read this section as requiring a trial to the court only on liquidated damages; the jury's award of damages in the amounts of unpaid back wages was not challenged); Wirtz v. Jones, 340 F.2d 901 (5th Cir. 1965); Lewis v. Times Pub. Co., 185 F.2d 457 (5th Cir. 1950); Olearchick v. American Steel Foundries, 73 F.Supp. 273 (W.D.Pa.1947); 5 Moore's Federal Practice, ¶ 38.27. On the other hand, § 217 actions have been unanimously characterized by the courts as equitable, notwithstanding the Secretary of Labor's power to seek an injunction to restrain the withholding of wages. E. g., Geyer Broadcasting Co. v. Holder, 14 Fed.Rules Serv.2d 621 (7th Cir. 1970); Sullivan v. Wirtz, 359 F.2d 426 (5 Cir. 1966); Wirtz v. Jones, supra; Brennan v. J. C. Penney Co., Inc., 61 F.R.D. 66 (S.D.Ohio N.D., 1973); Hodgson v. Stewart Infra-Red Commissary, Inc., 370 F.Supp. 503 (E.D.Pa., 1973); Hodgson v. Board of Education of Parsippany-Troy Hills, 344 F.Supp. 79 (D.N.J.1972); Wirtz v. Adair, 224 F.Supp. 750, 755 (W. D.Ark.1963).⁶

Under both § 217 and § 626(b), the Secretary of Labor is authorized to bring suit on behalf of the aggrieved employee, and such action forecloses any private employee damage action under § 216(b) and § 626(b). 29 U.S.C. §§ 216(b)(c), 626(c) (1970). Hence, no adequate remedy at law exists when the Secretary brings an action under § 217; this would, in the classic sense, be an invocation of this Court's equitable jurisdiction. A suit under 29 U.S.C. § 626(b), requesting only injunctive reinstatement for age discrimination in employment, would sound in equity whether brought by the Secretary or by the individual employee. Such an action would clearly be equitable under the three-pronged test of Ross since there would be no common law analog to reinstatement as the injunctive remedy is traditionally equitable. An employee action for reinstatement and damages would present historically mixed claims at law and equity. In such actions raising both legal and equitable claims, Dairy Queen, Inc. v. Wood, supra, rejected the "equitable clean-up doctrine" which would treat the entire action as equitable since back pay damages would be regarded as "incidental" to the main injunctive relief sought.⁷ Dairy Queen requires that issues underlying a legal claim for damages be tried to a jury, providing that an action at law is otherwise adequate to present the claim under the tripartite test of Ross. See Dairy Queen, Inc. v. Wood, supra, 369 U.S. at 469, 479, 82 S. Ct. 894.

In the instant action under 29 U.S.C. § 626(b), plaintiff seeks only...