Clark v. Sears, Roebuck & Co.

• Decision Date: 26 July 1993
• Docket Number: Civ. A. No. 92-CV-6438.
• Citation: 827 F. Supp. 1216
• Parties: Theodore CLARK v. SEARS, ROEBUCK & COMPANY.
• Court: U.S. District Court — Eastern District of Pennsylvania

827 F. Supp. 1216

Theodore CLARK v. SEARS, ROEBUCK & COMPANY.

Civ. A. No. 92-CV-6438.

United States District Court, E.D. Pennsylvania.

July 26, 1993.

William P. Murphy, Prospect Park, PA, for plaintiff.

Madeline S. Baio, Eric A. Weiss, Liebert, Short & Hirshland, Philadelphia, PA, for defendant.

MEMORANDUM AND ORDER

JOYNER, District Judge.

This action is once more before the Court upon motion of the defendant, Sears, Roebuck and Company for the entry of summary judgment in its favor. For the reasons which follow, the motion shall be granted and judgment in no amount entered in favor of the defendant.

I. HISTORY OF THE CASE.

According to the parties' pleadings, stipulation of uncontested facts and the evidence now produced of record, this case arose in or about December, 1989, when the plaintiff, Theodore Clark, a black individual, was informed by Sears Store Manager Al Dubeck that he was being reassigned from his position as Receiving Supervisor at the defendant's South Philadelphia store and would thereafter be responsible only for overseeing the maintenance functions at the store. Since September, 1987, Mr. Clark had been responsible for the supervision of both the maintenance and the receiving operations at that store and, at the time of the reassignment, had been at a job grade 11 earning $10.65 per hour. As a result of the reassignment, Plaintiff received a wage increase to $11.32 per hour and the responsibility for overseeing the receiving function was reassigned to the former Auto Shop Supervisor, Anthony Barile, a white employee. Prior to the January, 1990 realignment, Mr. Barile had been earning $13.42 per hour; upon the assumption of his new duties, his wage rate was increased to $14.15 per hour.

In April, 1990, Mr. Clark was injured while performing a maintenance function at the South Philadelphia store and has been unable to work since that time. In accordance with Sears' disability policies, plaintiff's ongoing inability to return to work resulted in his official termination on September 3, 1991. Anthony Barile remained with Sears until he was laid off in March, 1991. He was never recalled to work and in March, 1993, the Oregon Avenue store closed permanently.

Plaintiff contends that in June, 1991, he received four payroll summaries from an anonymous source which first alerted him to the fact that Mr. Barile was earning more in the position of receiving supervisor than he had been. Based upon this information, in November, 1991 plaintiff filed complaints with the Pennsylvania Human Relations Commission and with the Equal Employment Opportunity Commission alleging that the defendant had discriminated against him on the grounds of race in violation of Title VII and Section 1981 of the Civil Rights Acts of 1964 and 1991, 42 U.S.C. §§ 1981, 2000e-5. A right to sue letter was thereafter issued by the EEOC and the plaintiff filed this lawsuit on November 9, 1992.

II. DISCUSSION.

1. Standards Governing Disposition of Summary Judgment Motions under the Federal Rules of Civil Procedure.

Under Fed.R.Civ.P. 56(c), summary judgment is appropriately entered in favor of a moving party "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Pursuant to this rule, the district courts must look beyond the bare allegations of the pleadings to determine if they have sufficient factual support to warrant their consideration at trial. Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287 (D.C.Cir.1988), cert. denied, 488 U.S. 825, 109 S.Ct. 75, 102 L.Ed.2d 51 (1988).

Generally, the party seeking summary judgment always bears the initial responsibility of informing the court of the basis for its motion and of identifying those portions of the pleadings, depositions, interrogatory answers, admissions and any affidavits which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In ruling upon a summary judgment motion, the court must assume the truth of the nonmovant's evidence, and draw all justifiable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986); Lockley v. Chao, 812 F.Supp. 246, 248-249 (D.D.C.1993).

This is not to say, however, that a non-moving party may rest upon the allegations contained in his or her pleadings in defense of a summary judgment motion. To be sure, Fed.R.Civ.P. 56(e) provides, in pertinent part:

"When a motion for summary judgment is made and supported as provided for in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party."

Thus, while the burden of demonstrating the absence of genuine issues of material fact is initially on the moving party, once such a showing has been made the non-movant must present evidence through affidavits, depositions or admissions on file which comprise of a showing sufficient to establish the existence of every element essential to that party's case. See: Celotex v. Catrett, supra, 477 U.S. at 321-323, 106 S.Ct. at 2552-2553; Keyes v. National Railroad Passenger Corp., 756 F.Supp. 863 (E.D.Pa.1991); Applications Research Corp. v. Naval Air Development Center, 752 F.Supp. 660 (E.D.Pa.1990).

2. Retroactive Application of the Civil Rights Act of 1991 to the Case at Bar.

In support of its motion for summary judgment, Defendant first renews the argument which it made in support of its previously-filed motion to dismiss, that the plaintiff has failed to state a viable cause of action under Section 1981 as a result of the United States Supreme Court's decision in Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989) and that the 1991 amendments to Section 1981 should not be given retroactive application. In this regard, Sears correctly asserts that in first considering this issue this Court focused on the date on which the civil action complaint was filed in this action rather than on the date on which the complained-of conduct occurred. Upon further evaluation of the facts of this case, we agree with the defendant that this focus was misplaced and hence an evaluation of whether or not the 1991 amendments to the Act should be retroactively applied is properly undertaken at this time.

In essence, the U.S. Supreme Court in Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989) held that racial harassment relating to the conditions of employment is not actionable under § 1981 because that provision does not apply to conduct which occurs after the formation of a contract and which does not interfere with the right to enforce established contract obligations. In response to this and to other Supreme Court civil rights decisions, Congress enacted and on November 21, 1991, President Bush signed into law, the Civil Rights Act of 1991. See, e.g.: Blanding v. Pennsylvania State Police, 811 F.Supp. 1084, 1090 (E.D.Pa.1992); Section 3, Pub.L. 102-166. Part and parcel of that Act was the amendment of Section 1981 to read as follows:

(a) Statement of equal rights

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

(b) Definition

For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.

(c) Protection against impairment

The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.

(A) A Review of the Act's Language and Legislative History.

It is of course axiomatic that the determination of whether a statute should be applied retroactively must begin with the language of the statute itself and that the language of a statute is considered controlling in this analysis unless there is a clear legislative intent to the contrary. Bread Political Action Comm. v. Federal Election Comm'n, 455 U.S. 577, 580, 102 S.Ct. 1235, 1237, 71 L.Ed.2d 432 (1982); Aiken v. Bucks Ass'n for Retarded Citizens, Inc., 799 F.Supp. 522, 527 (E.D.Pa.1992).

Unfortunately, the language of the statute in this case is far from clear. Section 402(a) of the Act states only that "except as otherwise specifically provided, this Act and the amendments made by this Act shall take effect upon enactment." As has repeatedly been observed, this clause provides virtually no guidance inasmuch as it is susceptible to a number of different interpretations. For example, 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. Mozee v....