Cohen v. Georgia-Pacific Corp.

• Decision Date: 21 April 1993
• Docket Number: Civ. No. 92-310-SD.
• Citation: 819 F. Supp. 133
• Parties: Marcelle COHEN v. GEORGIA-PACIFIC CORPORATION.
• Court: U.S. District Court — District of New Hampshire

819 F. Supp. 133

Marcelle COHEN v. GEORGIA-PACIFIC CORPORATION.

Civ. No. 92-310-SD.

United States District Court, D. New Hampshire.

April 21, 1993.

Louis B. Birenbaum, Malden, MA, David Scott Phillips, Manchester, NH, for plaintiff.

Lawrence C. Winger, Portland, ME, Katherine M. Hanna, Concord, NH, for defendant.

ORDER

DEVINE, Senior Judge.

In this action plaintiff Marcelle Cohen seeks redress of the alleged deprivation of her rights to equal employment opportunity as an employee of defendant Georgia-Pacific Corporation under 42 U.S.C. §§ 1981a and 2000e-2, and New Hampshire law. The court has jurisdiction (1) of plaintiff's federal law claims under 42 U.S.C. § 2000e-5(f)(3) and 28 U.S.C. §§ 1331, 1337(a) and 1343(a)(4); and (2) of plaintiff's state-law claims under 28 U.S.C. § 1367(a). Plaintiff seeks a jury trial on all issues.

Presently before the court is defendant's motion to dismiss Count IV,¹ filed on October 30, 1992, pursuant to Rule 12(b)(6), Fed. R.Civ.P.

1. Background

Georgia-Pacific hired plaintiff in June 1987, allegedly in the position of Inside Sales Representative in defendant's Manchester, New Hampshire, sales office. Complaint at ¶ 11. Ms. Cohen alleges she accepted said employment in reliance upon Georgia-Pacific's representation "that, upon performing well as an Inside Sales Representative, she would be promoted to the more lucrative and advanced position of Outside Sales Representative." Id. at 12.

Ms. Cohen alleges that during her employment with Georgia-Pacific "she received salary increases, favorable performance evaluations and favorable comments from superiors," and "attained the honor of 1988 Salesperson of the Year" in Georgia-Pacific's Manchester office. Id. at ¶ 13. Ms. Cohen alleges that she "was qualified to perform the function of Outside Sales Representative," id., and that during her employment with Georgia-Pacific she "requested of her superiors, including her immediate supervisor, Joseph Caruso, that she be promoted to Outside Sales Representative," id. at ¶ 15. Plaintiff further alleges that during said employment, "similarly situated male Inside Sales Representatives possessing less sales experience" were promoted to the position of Outside Sales Representative. Id. at ¶ 14. Georgia-Pacific never promoted Ms. Cohen to the position of Outside Sales Representative.

In the course of her employment with Georgia-Pacific, Ms. Cohen was allegedly subjected to the following:

1 pictures of bikini-clad women on office walls; 2 regular recitation of sexually explicit jokes; 3 regular use of profane, lewd and sexually offensive language in office conversations; 4 notification of a male employee by Mr. Caruso that the male employee probably could stay overnight with Ms. Cohen if he needed a place to stay; and 5 unwelcome advances by Mr. Caruso and another manager requesting that Ms. Cohen meet them for alcoholic drinks and when she refused, requesting that they come to her apartment, which she also refused.

Id. at ¶ 17.

On or about February 11, 1991, Georgia-Pacific discharged Ms. Cohen. Said discharge was allegedly carried out by Joseph Caruso "without warning or notice purportedly on the grounds that her position was being eliminated." Id. at ¶ 18. Ms. Cohen alleges that the reason given "was not the real reason for her discharge, but only a pretext." Id. at ¶ 21. Ms. Cohen alleges that at the time of her discharge "similarly situated but less qualified and less senior male Inside Sales Representatives were not discharged," id. at ¶ 19, and that she "was not afforded the opportunity to transfer to another Georgia-Pacific office as were at least two other similarly situated male employees on prior occasions," id. at ¶ 20. Plaintiff alleges that Georgia-Pacific discharged her "because of her gender." Id. at ¶ 21.

In Count IV of her complaint, plaintiff seeks relief under section 102 of the Civil Rights Act of 1991, P.L. 102-166, 105 Stat. 1071 (Nov. 21, 1991) (codified at 42 U.S.C. § 1981a) ("1991 Act"), which provides, inter alia, for compensatory damages and punitive damages in employment discrimination cases and for the right to a jury trial if the plaintiff seeks either compensatory or punitive damages.² The essence of defendant's 12(b)(6) motion is that Count IV fails to state a claim upon which relief can be granted because the 1991 Act does not apply to conduct occurring prior to its effective date of November 21, 1991.³ Defendant's Memorandum In Support Of Motion To Dismiss ("Defendant's Memo") at 1-3.

2. Discussion

Defendant urges the court to find that the 1991 Act does not apply retroactively "to matters that arose before the effective date of the Act," Defendant's Memo at 2, because "the great weight of authority is against such retroactive application," id. at 2-3 (citing Baynes v. AT & T Technologies, Inc., 976 F.2d 1370 (11th Cir.1992);⁴Gersman v. Group Health Ass'n, Inc., 975 F.2d 886 (D.C.Cir.1992); Holt v. Michigan Dept. of Corrections, 974 F.2d 771 (6th Cir.1992) (citing Vogel v. City of Cincinnati, 959 F.2d 594 (6th Cir.1992));⁵Johnson v. Uncle Ben's, Inc., 965 F.2d 1363 (5th Cir.1992);⁶Mozee v. American Commercial Marine Service Co., 963 F.2d 929 (7th Cir.1992);⁷Fray v. Omaha World Herald Co., 960 F.2d 1370 (8th Cir.1992);⁸ EEOC Notice No. 915.002 (Dec. 27, 1991) (finding that the damages provisions of the 1991 Act do not apply retroactively to conduct occurring prior to the effective date of the 1991 Act);⁹but see Davis v. City and County of San Francisco, 976 F.2d 1536 (9th Cir.1992) (holding "that Congress intended the courts to apply the Civil Rights Act of 1991 to cases pending at the time of its enactment and to pre-Act conduct still open to challenge after that time"),¹⁰reh'g denied, vacated in part, remanded, 984 F.2d 345 (9th Cir.1993) (portion of opinion dealing with issue of retroactivity of 1991 Act vacated as moot due to settlement of claims for expert witness fees)). Accord Butts v. City of New York Dept. of Housing Preservation & Dev., 990 F.2d 1397 (2d Cir.1993) (holding that "the § 1981 amendments contained in § 101 of the Civil Rights Act of 1991 do not apply retroactively").

a. A Survey of the Circuits

The First Circuit has not addressed this issue. Compare, e.g., Bonilla v. Liquilux Gas Corp., 812 F.Supp. 286 (D.P.R.1993) (holding that the damages and jury trial provisions of the 1991 Act apply to conduct occurring prior to the date of enactment) (citing, inter alia, Aledo-Garcia v. Puerto Rico Nat'l Guard Fund, Inc., 887 F.2d 354, 355 (1st Cir.1989)), with Letourneau v. Casa Mia, Inc., 804 F.Supp. 389 (D.Me.1992) (noting that "the First Circuit precedents provide no guidance" and holding that the damages provisions of the 1991 Act do not apply to conduct occurring prior to the date of enactment).

The favored approach among those circuits which have held that the 1991 Act does not apply retroactively has been to find (1) that the statutory language and legislative history are inconclusive as to the issue of retroactivity; and (2) that the presumption against retroactivity contained in Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988),¹¹ must therefore be applied. See Butts v. City of New York Dept. of Housing Preservation & Dev., supra, 990 F.2d at 1404-1410; Gersman v. Group Health Ass'n, Inc., supra, 975 F.2d at 888-900; Johnson v. Uncle Ben's, Inc., supra, 965 F.2d at 1372-74; Mozee v. American Commercial Marine Serv. Co., supra, 963 F.2d at 932-40; Vogel v. City of Cincinnati, supra, 959 F.2d at 597-98. An alternative approach among such courts has been to find (1) that the statutory language and legislative history are inconclusive as to the issue of retroactivity; and (2) that the choice between the Georgetown and Bradley principles is unnecessary because the application of each leads to the same determination; i.e., that the relevant provisions of the 1991 Act do not apply to conduct occurring prior to the effective date of the Act. See Baynes v. AT & T Technologies, Inc., supra, 976 F.2d at 1372-73; Landgraf v. USI Film Products, supra, 968 F.2d at 432-33 (citing the reasoning in Johnson v. Uncle Ben's Inc., supra, as the basis for its conclusion "that there is no clear congressional intent on the general issue of the 1991 Act's application to pending cases"). The least-favored approach has been to find (1) that the statutory language of the 1991 Act is inconclusive as to the issue of retroactivity and (2) that under either Georgetown or Bradley the Act does not apply retroactively because its legislative history clearly indicates that Congress did not intend such application. See Fray v. Omaha World Herald Co., supra, 960 F.2d at 1373-78.¹² Based on its determination that the statutory language of the 1991 Act does indeed provide conclusive evidence of Congress's intent regarding the issue of retroactivity, Estate of Reynolds v. Martin, supra note 10, 985 F.2d at 473-74, this court finds each of these approaches to be in error.

b. Interpreting the Statute

"The starting point for interpretation of a statute `is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.'" Kaiser Aluminum & Chem. Corp. v. Bonjorno, supra, 494 U.S. at 835, 110 S.Ct. at 1575.

Section 109(c) of the 1991 Act limits the application of section 109¹³ with the following plain and precise language: "The amendments made by this section shall not apply with respect to conduct occurring before the date of the enactment of this Act."¹⁴ 1991 Act, § 109(c), 105 Stat. at 1078 (emphasis added). Section 402(b) contains an equally plain and precise limitation on the application of the 1991 Act: "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 ...