E.E.O.C. v. Corry Jamestown Corp., No. 82-5706

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Writing for the Court: Before ALDISERT and WEIS; RE
• Citation: 719 F.2d 1219
• Parties: 33 Fair Empl.Prac.Cas. 871, 32 Empl. Prac. Dec. P 33,860 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellant, v. CORRY JAMESTOWN CORP. . Submitted Under Third Circuit Rule 12(6)
• Docket Number: No. 82-5706
• Decision Date: 08 August 1983

Page 1219

719 F.2d 1219 33 Fair Empl.Prac.Cas. 871,
32 Empl. Prac. Dec. P 33,860 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellant,
v.
CORRY JAMESTOWN CORP. No. 82-5706. United States Court of Appeals,
Third Circuit.
Submitted Under Third Circuit Rule 12(6) Aug. 8, 1983.
Decided Oct. 17, 1983.

Page 1220

David L. Slate, Gen. Counsel, Philip B. Sklover, Associate Gen. Counsel, Vella M. Fink, Asst. Gen. Counsel, Jeffrey C. Bannon, Atty., Equal Employment Opportunity Commission, Washington, D.C., for appellant.

Patrick J. Madden, Penelope B. Tvrdik, Stanley, Lande, Coulter & Pearce, Muscatine, Iowa, Roger H. Taft, MacDonald, Illig, Jones & Britton, Erie, Pa., for appellee.

Robert E. Williams, Douglas S. McDowell, Barbara L. Neilson, McGuiness & Williams, Washington, D.C., for amicus curiae, Equal Employment Advisory Council.

Before ALDISERT and WEIS, Circuit Judges, and RE, ^* Chief Judge.

OPINION OF THE COURT

RE, Chief Judge.

In this age discrimination case, plaintiff-appellant, the Equal Employment Opportunity Commission, suing on behalf of John Downey and others for backpay, damages, and injunctive relief, appeals from an order of the United States District Court for the Western District of Pennsylvania which denied its demand for a jury trial. The appeal followed a full bench trial on the merits that resulted in a judgment for defendant-appellee, the Corry Jamestown Corporation.

The question presented on this appeal is whether the Commission has a right to a jury trial when it sues on behalf of an individual employee for violations under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Secs. 621-634 (1976). Since we hold that the Commission was entitled to a jury trial and did not waive it, we reverse.

On July 30, 1980, the Commission sued in the District Court for the Western District of Pennsylvania for backpay, damages, and injunctive relief pursuant to Sec. 7(b) of the ADEA, 29 U.S.C. Sec. 626(b). The Commission alleged that Corry Jamestown had violated Sec. 4(a) of the ADEA, 29 U.S.C. Sec. 623(a), by discharging John Downey and

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other similarly situated employees because of their age. The Commission demanded a jury trial on all issues of fact raised by the complaint.

On September 2, 1980, Corry Jamestown answered and moved to strike the Commission's demand for a jury trial. The district court granted the motion on September 24, 1980 and ruled that only private litigants were entitled to a trial by jury in ADEA actions. The court construed the statutory phrase contained in Sec. 7(c)(2), "a person shall be entitled to a trial by jury of any issue of fact," as excluding the Commission.

At the trial, the Commission presented evidence that Downey was discharged from his position as personnel manager at age fifty-four, within the age band protected by the ADEA, Sec. 12(a), 29 U.S.C. Sec. 631(a), and was replaced by a younger person. Evidence was also adduced that demonstrated that employees over forty years of age had a much greater termination rate than those under forty. Although contradicted, there was evidence that tended to show that the reasons given for Downey's dismissal were pretextual. The district court entered judgment in favor of Corry Jamestown on September 21, 1982, and on November 18, 1982, the Commission appealed.

Section 4(a) of the ADEA broadly prohibits arbitrary discrimination in the workplace based on age. 29 U.S.C. Sec. 623(a) (1976). In addition, Sec. 7(b) of the ADEA, 29 U.S.C. Sec. 626(b), expressly incorporates the powers, remedies, and procedures of the Fair Labor Standards Act (FLSA) as provided for in Secs. 16(b), 16(c) and 17, 29 U.S.C. Secs. 216(b), 216(c) and 217. Specifically, Sec. 16(b) provides that employees may bring suit against their employer on their own behalf, and on behalf of all others similarly situated for both legal and equitable relief. Section 16(c) provides that the Secretary (now the Commission) ¹ may bring suit against an employer on behalf of an employee to recover unpaid minimum wages, overtime compensation, and liquidated damages. If the Commission sues under Sec. 16(c), the employee's right to sue under Sec. 16(b) is terminated. A suit under Sec. 16(c), therefore, is essentially a representative action brought to enforce the private rights described in Sec. 16(b). It has been held that these actions are analogous to actions at law and are triable before a jury. See, e.g., Wirtz v. Jones, 340 F.2d 901 (5th Cir.1965); Mitchell v. City Ice Co., 273 F.2d 560 (5th Cir.1960); Lewis v. Times Publishing Co., 185 F.2d 457 (5th Cir.1950); Marshall v. Hanioti Hotel Corp., 490 F.Supp. 1020 (N.D.Ga.1980); Olearchick v. American Steel Foundries, 73 F.Supp. 273 (W.D.Pa.1947). Finally, Sec. 17 empowers the Commission to seek injunctive relief.

As originally enacted, the ADEA did not contain any references regarding the availability of jury trials in actions instituted either by private individuals or brought by the government. In 1978, however, after the Supreme Court in Lorillard v. Pons, 434 U.S. 575, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978), held that the incorporation of FLSA procedures into the ADEA included the right to a trial by jury, Congress amended the ADEA so that a trial by jury would be available in private actions under the ADEA. The 1978 amendment to the Act revised Sec. 7(c) to read as follows:

(c)(1) Any person aggrieved may bring a civil action in any court of competent jurisdiction for such legal and 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 [now the Commission] to enforce the right of such employee under this chapter.

(2) In an action brought under paragraph (1), a person shall be entitled to a trial by jury of any issue of fact in any such action for recovery of amounts owing as a result of a violation of this chapter, regardless of whether equitable

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relief is sought by any party in such action.

29 U.S.C. Sec. 626(c) (Supp. V. 1982) (emphasis added).

Corry Jamestown contends that the 1978 amendment only permits a jury trial in an action brought by a private complainant, and that, had Congress meant to afford the Commission a right to a jury trial, it would have expressly conferred that right in the amendment to the Act. Corry Jamestown further argues that, since the Commission could have brought either an interlocutory appeal pursuant to 28 U.S.C. Sec. 1292(b) or a writ of mandamus to obtain a jury trial, it waived its right to raise the issue after receiving an unfavorable ruling in the district court. Finally, Corry Jamestown contends that even if the district court erred in denying a jury trial, the Commission should not be granted a new trial since the court's findings of fact were not clearly erroneous, and its refusal to grant a trial by jury was neither inconsistent with substantial justice nor prejudicial to the Commission.

The Commission, on the other hand, contends that pursuant to Sec. 16(c) of the FLSA it is authorized to bring an action to recover amounts owed to victims of age discrimination, and that those actions are analogous to actions at law, having consistently been tried by jury. The Commission also maintains that nothing in the 1978 amendments to the ADEA, which added Sec. 7(c)(2) guaranteeing trial by jury to "any person," shows any intent to deny jury trials in government enforcement actions. Rather, in the Commission's view, the purpose of the 1978 addition of Sec. 7(c)(2) was not to limit jury trials to individuals, but to assure that individuals could get jury trials even if they sought liquidated damages. Thus, the Commission states that since it presented sufficient evidence to withstand a motion for a directed verdict, this court should reverse and remand for a new trial before a jury.

The district court reasoned, and Corry Jamestown contends, that the word "person" refers only to an individual employee who has been discriminated against under the statute, but not to the Commission. Since there is no precedent in support of this position, it is based solely upon a strict construction of the word "person" in Sec. 7(c)(2). ²

Section 11 of the ADEA defines the word "person" as "one or more individuals, partnerships, associations, labor organizations, corporations, business trusts, legal representatives, or any organized group of...