Haynes v. Shoney's, Inc., No. 89-30093-RV.

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
Writing for the CourtThomas A. Warren and Sam J. Smith, Tallahassee, Fla
Citation803 F. Supp. 393
Decision Date12 March 1992
Docket NumberNo. 89-30093-RV.
PartiesJosephine HAYNES, et al., Plaintiffs, v. SHONEY'S, INC., et al., Defendants.

803 F. Supp. 393

Josephine HAYNES, et al., Plaintiffs,
v.
SHONEY'S, INC., et al., Defendants.

No. 89-30093-RV.

United States District Court, N.D. Florida, Pensacola Division.

March 12, 1992.


Thomas A. Warren and Sam J. Smith, Tallahassee, Fla.

Cornelia T.L. Pillard, NAACP Legal Defense and Educational Fund, Inc., New York City, Jocelyn D. Larkin, Elaine B. Feingold, Antonio Lawson, Barry Goldstein, and Sheila Y. Thomas, Saperstein, Seligman & Mayeda, Oakland, Cal., for plaintiffs.

Jack H. Halgren, Los Angeles, Cal., Barry V. Frederick, Charles A. Powell, III, Birmingham, Ala., Stephen E. Tallent, Washington, D.C., and Peter W. Zinober, Tampa, Fla., for defendant Shoney's, Inc.

Donald H. Partington, Pensacola, Fla., for defendant Ray Danner.

ORDER

VINSON, District Judge.

Pending is the plaintiffs' motion regarding the applicability of the Civil Rights Act of 1991 to this action. (doc. 860). The issue presented is whether the Civil Rights Act of 1991 Pub.L. No. 102-166, 105 Stat. 1071 (to be codified at various sections of Titles 29 and 42, United States Code) (hereinafter "the 1991 Act"), which became law on November 21, 1991, applies to this civil rights action, which was originally filed on April 4, 1989. Because I find that the 1991 Act should not be applied retroactively, the plaintiff's motion is DENIED.

On November 21, 1991, President Bush signed the Civil Rights Act of 1991. The 1991 Act effectively reversed or modified a number of decisions by the Supreme Court of the United States, including Patterson v. McClean Credit Union, 491 U.S. 164, 109

803 F. Supp. 394
S.Ct. 2363, 105 L.Ed.2d 132 (1989).1 See, e.g., Partee v. Metropolitan School District of Washington Township, 954 F.2d 454 (7th Cir.1992) (acknowledging statutory abrogation). The relevant portions of the 1991 Act, will, if retroactively applied, have a substantial effect on the scope of this case

For example, the Act effectively overrules Patterson, supra, by amending Title 42, United States Code, Section 1981, to extend its protections to "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." See Section 101(2)(b). This would appear to effectively eliminate the defendants' argument that a number of claims arising under Section 1981 are barred because they seek relief for discriminatory harassment, retaliation, and/or discharge, both actual and constructive.2

Another significant effect of the 1991 Act is on available remedies. Under Section 102 of the Act, Section 1981 is amended to provide for compensatory and punitive damages for claims of intentional violations: (a) of Title VII, (b) of the Americans with Disabilities Act of 1990 Pub.L. No. 101-336, 104 Stat. 327 (to be codified at 42 U.S.C. § 12101), and (c) of the Rehabilitation Act of 1973 29 U.S.C. § 791, in addition to other remedies (injunctive relief and backpay)3 already provided by Title VII.4

The damages provisions appear as an amendment to Section 1981 and complaining parties will make their claims under Section 1981 only. See Section 102(a)(1), (b), (d)(1). The new damages are not available to parties who can recover under the existing provisions of Section 1981. See Section 102(a)(1). Punitive damages are available where it is demonstrated that the defendant acted intentionally or with "malice or with reckless indifference to ... federally protected rights." Section 102(b)(1).5 Section 102 also provides for a right to a jury trial when the complaining party seeks compensatory or punitive damages under this section, and bars the court from informing

803 F. Supp. 395
the jury of the statutory limitations on the amount of damages awarded.6

The starting point for interpretation of a statute is the language of the statute itself. Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 852, 110 S.Ct. 1570, 1575, 108 L.Ed.2d 842, 852 (1990). In the absence of a clearly expressed legislative intention to the contrary, the language must be ordinarily regarded as conclusive. Id. See also United States v. James, 478 U.S. 597, 606, 106 S.Ct. 3116, 3121, 92 L.Ed.2d 483, 494 (1986); Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766, 772 (1980). If the statute is silent, the court can apply general principles of statutory construction to determine if intent is implicit in the overall context of the statute.

Unfortunately, the plain language of the 1991 Act provides no guidance on the retroactivity determination. The 1991 Act does not explicitly provide for retroactive or prospective application. Three sections do provide for a time of application, but they carry conflicting inferences. First, Section 402(a) provides that the effective date of the 1991 Act is the date of enactment.7 It does not reflect any intent to make the Act retroactive, and must be construed as an indication of prospective application only.

Second, Section 402(b) excepts any retroactive application of the Act to any disparate impact case which "was filed before March 1, 1975, and for which an initial decision was rendered after October 30, 1983," i.e., the Wards Cove Packing case.8 See e.g., 137 Cong. Rec. S15,483 (daily ed. Oct. 30, 1991) (statement of Sen. Danforth); 137 Cong. Rec. S15,953 (daily ed. Nov. 5, 1991) (statement of Sen. Murkowski); 137 Cong. Rec. S15,478 (daily ed. Oct. 30, 1991) (statement of Sen. Dole). As a number of courts have noted, to construe the statute as prospective only in its application would render this section superfluous. The Supreme Court has expressed a hesitation to adopt an interpretation of a congressional enactment which renders superfluous another portion of the same law. See Mackey v. Lanier Collections Agency & Serv., Inc., 486 U.S. 825, 837, 108 S.Ct. 2182, 2189, 100 L.Ed.2d 836, 848 (1988); Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 142, 105 S.Ct. 3085, 3090, 87 L.Ed.2d 96, 103 (1985). Thus, it can be said that the only interpretation of Section 402(a) which does not render Section 402(b) meaningless and redundant is that the Act is generally to be applied retroactively. However, the political maneuvering evident in the Murkowski Amendment makes even that conclusion very tenuous, because it seems to have been a "scotch-block" brought about because of the then-existing uncertainty of how the Act would ultimately read.

Finally, Section 109 of the Act legislatively overrules E.E.O.C. v. Arabian American Oil, ___ U.S. ___, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991), by extending Title VII protection to United States citizens who are working abroad for American companies. Section 109(c) would also be apparently rendered superfluous if the 1991 Act is construed as prospective only in application, since it provides that "the amendments made by this section shall not apply with respect to conduct occurring before the date of enactment of this Act." (emphasis added). If possible, a court

803 F. Supp. 396
must interpret a statute so as to give effect to every clause. Kungys v. United States, 485 U.S. 759, 778, 108 S.Ct. 1537, 1550, 99 L.Ed.2d 839, 858 (1988) (referring to the "cardinal rule of statutory interpretation that no provision should be construed to be entirely redundant"). Moreover, Congress is presumed to act with knowledge of the basic rules of statutory construction. McNary v. Haitian Refugee Center, Inc., 498 U.S. 499, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991).9 Again, however, this provision seems more likely to have been generated because of the uncertainty of how the Act would ultimately read, and cannot be indicative of a comprehensive legislative intent

Despite the permissible inferences which might be drawn from these conflicting provisions, it is clear to me that the use of statutory deduction alone provides no meaningful assistance in the construction of this aspect of the Act. Therefore, I must also examine the history and purpose of the Act. I initially note the remarkable lack of clarity of legislative intent revealed by the pertinent history of the 1991 Act.

The 1991 Act was the result of an often bitter two-year effort by some members of Congress to enact some form of additional civil rights legislation. The legislation, as originally introduced in February 1990, targeted five decisions by the Supreme Court in 1989. These decisions (1) narrowed the coverage of civil rights legislation; (2) broadened the circumstances under which affirmative action plans could be challenged after the fact; (3) narrowed the circumstances in which a complaining party could challenge an allegedly discriminatory seniority plan; (4) imposed more exacting standards for succeeding on disparate impact claims; and (5) increased the difficulty of establishing liability of employers whose motivation was partially legitimate and partially discriminatory.

After the 1990 legislation failed, and before the 1991 Act was enacted, two additional Supreme Court cases affected civil rights legislation by (1) determining that a prevailing party's ability to recover expert witness fees in civil rights actions was the same as any other civil litigation, and (2) by limiting coverage of Title VII in foreign employment. See West Virginia University Hospital, Inc. v. Casey, ___ U.S. ___, 111 S.Ct. 1138, 113 L.Ed.2d 68 (1991); E.E.O.C. v. Arabian American Oil, ___ U.S. ___, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991). The 1991 Act also includes provisions which effectively overrule these two subsequent decisions.

The 1990 bill contained a number of provisions which provided for varying degrees of retroactive application in pending cases. See 136 Cong. Rec. H9,554 (daily ed. Oct. 12, 1990). However, President Bush vetoed this bill, stating as one of his reasons "unfair retroactivity rules." See 136 Cong. Rec. S16,457 (Oct. 22, 1990) (record of Presidential Veto). The Presidential veto of the 1990...

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