Jaekel v. Equifax Marketing Decision Systems, Inc., Civ. No. 92-607-A.

• Court: United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
• Writing for the Court: ELLIS
• Citation: 797 F. Supp. 486
• Parties: Linda L. JAEKEL and Emily Eelkema, Plaintiffs, v. EQUIFAX MARKETING DECISION SYSTEMS, INC., Defendant.
• Decision Date: 26 June 1992
• Docket Number: Civ. No. 92-607-A.

797 F. Supp. 486

Linda L. JAEKEL and Emily Eelkema, Plaintiffs,
v.
EQUIFAX MARKETING DECISION SYSTEMS, INC., Defendant.

Civ. No. 92-607-A.

United States District Court, E.D. Virginia, Alexandria Division.

June 26, 1992.

797 F. Supp. 487

Andrew William Stephenson, Dunnells, Duvall & Porter, Washington, D.C., for plaintiffs.

Elizabeth Land Lewis, McGuire, Woods, Battle & Boothe, McLean, Va., for defendant.

MEMORANDUM OPINION

ELLIS, District Judge.

INTRODUCTION

Plaintiffs Linda L. Jaekel and Emily Eelkema sued their former employer, Equifax Marketing Decision Systems, Inc., alleging sexual harassment in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17 ("Title VII"). They seek, inter alia, compensatory and punitive damages, and they demand a jury trial. These elements of relief and the right to trial by jury are newly available in Title VII cases pursuant to the Civil Rights Act of 1991, Pub.L. No. 102-166, § 102, 105 Stat. 1071 hereinafter the "1991 Act" or the "Act".¹ Presented here, on defendant's motion to dismiss, is the question whether § 102 of the 1991 Act applies in cases where, as here, the conduct complained of occurred prior to the Act's November 21, 1991, date of enactment, but the suit was filed afterwards.² For the reasons elaborated here, the Court holds that § 102 of the 1991 Act applies to such cases. Accordingly, plaintiffs are entitled to a trial by jury and to seek compensatory and punitive damages.

ANALYSIS

Across the country, federal courts are grappling with the question whether the 1991 Act, in whole or in part, applies retroactively. Thus far, the decisions on this issue are striking in their lack of uniformity. One formidable line of cases holds that the Act operates prospectively only.³ A second holds that some of its

797 F. Supp. 488

provisions apply retroactively.⁴ At least one court, not unreasonably, has thrown up its hands in despair, opting to wait for resolution of the issue of the Act's retroactivity in the higher courts.⁵

Procedurally, this case is distinguishable from the vast majority of these cases, which have arisen in the context of litigation pending on the Act's effective date.⁶ Unlike those cases, here plaintiffs' filed their lawsuit after the Act's effective date. Plaintiffs maintain that this distinction is dispositive in light of the plain language of the statute.

It is well-settled that the touchstone of statutory interpretation is the plain language of the statute. The plain language of a statute governs its interpretation absent clearly expressed legislative intent to

797 F. Supp. 489

the contrary.⁷ See, e.g., Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980) ("The familiar canon of statutory construction is that the starting point for interpreting a statute is the language of the statue itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive."); In re Forfeiture Hearings as to Caplin & Drysdale, Chartered, 837 F.2d 637 (4th Cir.1988) (same); Matala v. Consol. Coal Co., 647 F.2d 427 (4th Cir.1981) (same); Salomon Forex, Inc. v. Tauber, 795 F.Supp. 768, (E.D.Va.1992) (same). Analysis therefore, properly begins with the Act's language

Section 402 of the 1991 Act states:

Effective Date

(a) In General — Except as otherwise specifically provided, this Act and the amendments made by this Act shall take effect upon enactment.

Since the Act took effect on November 21, 1991, plaintiffs argue, it was in full force and effect in April 1992 when plaintiffs filed their complaint. Thus, plaintiffs contend that there is no genuine issue of retroactivity. See Great American Tool & Mfg. v. Adolph Coors Co., 780 F.Supp. 1354, 1355 (D.Colo.1992) ("Because this case was not pending at the time the Act became law, there is no issue of retroactive application.").

While not without some force, this argument is ultimately unsatisfying. The meaning of the effective date in § 402, without more, is ambiguous. An effective date may mean the date upon which a law's provisions begin to operate. Alternatively, an effective date may mean the date on which a party governed by a new law must begin to conform his conduct to the law's requirements. In some instances, an effective date may serve to establish a "grace period" between the time a law is enacted and the time a party must comply with it. Under one view, § 402's purpose is merely to establish that no grace period exists and not to establish that the Act applies to pre-enactment conduct. See Fray v. Omaha World Herald Co., 960 F.2d 1370, 1376 (8th Cir.1992) ("Since many regulatory statutes contain a compliance grace period, a provision clarifying that the Act would be immediately effective is hardly evidence of congressional intent that it be applied retroactively. ..."). Section 402, by itself, is therefore not dispositive of the retroactivity issue at bar.

Plaintiffs make a second statutory argument as well. Even assuming, arguendo, that retroactivity is implicated in § 402, plaintiffs point out that two of the Act's provisions are expressly prospective with respect to pre-enactment conduct. See § 109(c) of the 1991 Act ("The amendments made by this section regarding extraterritorial employment shall not apply with respect to conduct occurring before the date of the enactment of this Act."); § 402(b) of the 1991 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 October 30,

797 F. Supp. 490

1983."). Plaintiffs argue that these sections would be redundant, and therefore superfluous, if the entire Act were prospective only, a result in conflict with the well-settled principle that wherever possible a statutory provision should be interpreted so as not to render superfluous another portion of the same law.⁸ Again, this statutory argument is not without some force. But again, like plaintiffs' first statutory argument, it, too, is ultimately unsatisfying. Simply put, arguments that focus on the statutory language of the 1991 Act sidestep significant concerns underlying the issue of the retroactive application of statutes to past conduct.⁹

It is an axiom of fundamental fairness that a person ought not be held liable for conduct which, at the time of its occurrence, was lawful and which the person had a justified expectation would remain so. See, e.g., Robinson v. Davis Memorial Goodwill Indus., 790 F.Supp. 325 (D.D.C.). A law that serves to change liability for a person's primary conduct operates retroactively in contravention of this principle of fundamental fairness. As Justice Story defined it, a retroactive law is one that "takes away or impairs vested rights acquired under existing law, or creates a new obligation, imposes a new duty, or attaches a new disability in respect to transactions or considerations already past." Elmer E. Smead, The Rule Against Retroactive Legislation: A Basic Principle of Jurisprudence, 20 Minn.L.Rev. 775, 785 (1936) (cited in Fray, 960 F.2d at 1381 (Heaney, J. dissenting)). In essence, defendant complains that plaintiffs here seek to violate the fairness principle by applying new rules to past conduct.

The Supreme Court, motivated by this fairness principle, has articulated two rules regarding the retroactivity of statutes to past conduct. The existence of these two rules largely accounts for the two conflicting lines of cases dealing with the retroactivity of the 1991 Act. In Bradley v. School Bd. of Richmond, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974), the Court established the principle "that a court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is a statutory direction or legislative history to the contrary." See also Thorpe v. Housing Auth. of Durham, 393 U.S. 268, 282, 89 S.Ct. 518, 526, 21 L.Ed.2d 474 (1969). By contrast, in Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208, 109 S.Ct. 468, 471, 102 L.Ed.2d 493 (1988), Justice Kennedy, writing for a unanimous Court, held, without citing Bradley, that "congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result." See also, e.g., United States v. American Sugar Ref. Co., 202 U.S. 563, 577, 26 S.Ct. 717, 719, 50 L.Ed. 1149 (1906). The Supreme Court has thus far declined to reconcile

797 F. Supp. 491

these two precedents. See Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 110 S.Ct. 1570, 1577, 108 L.Ed.2d 842 (1990) (finding, on the facts presented, that it was unnecessary to reconcile Bowen and Bradley because under either rule clearly expressed legislative intent governs). Where two valid rules co-exist, it not the province of this Court, in the first instance, to exalt one over the other. Rather, the Court must first attempt to reconcile them in a meaningful and reasonable manner.¹⁰ Close scrutiny suggests that the Bowen and Bradley rules co-exist in passable, if not perfect, harmony when viewed in the context of the principle of fundamental fairness described above. See Robinson, 790 F.Supp. 325; Fray, 960 F.2d at 1381 (Heaney, J. dissenting)

The question in Bradley was whether to apply a new attorneys' fee provision to fees incurred in a school desegregation case before enactment of the statute. The Supreme Court stated that a statute would presumptively be applied retroactively unless the express language of the statute otherwise required or unless such application would result in "manifest injustice" by "depriving a person of a right that had matured or become unconditional." Bradley, 416 U.S. at 720, 94 S.Ct. at 2020. The Supreme Court identified three factors relevant to the determination of manifest injustice: (i) the...