Johns v. Evergreen Presbyterian Ministries, Inc.

• Decision Date: 16 July 1993
• Docket Number: Civ. A. No. 6:93cv135.
• Citation: 826 F. Supp. 1050
• Parties: Glenda JOHNS, Plaintiff, v. EVERGREEN PRESBYTERIAN MINISTRIES, INC., Defendant.
• Court: U.S. District Court — Eastern District of Texas

826 F. Supp. 1050

Glenda JOHNS, Plaintiff, v. EVERGREEN PRESBYTERIAN MINISTRIES, INC., Defendant.

Civ. A. No. 6:93cv135.

United States District Court, E.D. Texas, Tyler Division.

July 16, 1993.

William S. Hommel, Jr., Smithson & Hommel, Tyler, TX, for plaintiff.

Charles Homer Clark, Law Offices of Charles H. Clark, Tyler, TX, for defendant.

ROBERT M. PARKER, Chief Judge.

Memorandum Opinion and Order

Before the Court are: Evergreen Presbyterian Ministries, Inc.'s Motion for Summary Judgment; and Plaintiff's Response to Defendant's Motion for Summary Judgment.

Upon careful consideration, the Court has reached the conclusion that Defendant's Motion for Summary Judgment should be GRANTED IN PART and that this case should be STAYED PENDING THE UNITED STATES SUPREME COURT'S DECISION IN LANDGRAF v. USI FILM PRODUCTS, 968 F.2d 427 (5th Cir.1992).

I. Introduction

The "effective date" of the 1991 Civil Rights Act was November 21, 1991. Plaintiff filed her Original Complaint in this case on February 2, 1993, alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000(e) et seq., as amended by the 1991 Civil Rights Act (the Act). Defendant argues that it is the date of alleged conduct that triggers the "effective date" of the damages and jury trial provisions of the 1991 Civil Rights Act in a particular case, and not the date of complaint filing. Specifically, Defendant argues that allowing Plaintiff to proceed under the damages and jury trial provisions of the Act, even in this proceeding filed after the date of the Act's passage, would constitute an impermissible "retroactive" application of the Act because all of the defendant's alleged unlawful, intentional race discrimination conduct took place before the "effective date" of the Act.

For the reasons discussed below, the interests of justice, judicial economy and plain prudence compel the Court to stay this case until the Supreme Court renders its ruling in Landgraf. This Court is actually of the opinion that the defendant's argument is wrong, but for apparent Fifth Circuit law that may well soon be overruled, or at least distinguished from filed-after-the-Act cases such as this, by the United States Supreme Court next Term in Landgraf v. USI Film Products, 968 F.2d 427 (5th Cir.1992).¹

II. Defendant's 1991 Civil Rights Act (Section 102) Retroactivity Argument

Section 102 of the Act reflects a couple of significant changes to Title VII:

Sec. 102 Damages in Cases of Intentional Discrimination.

* * * * * *

(a) Right of Recovery. —

(1) Civil rights. — In an action brought by a complaining party under section 706 or 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5) against a respondent who engaged in unlawful intentional discrimination (not an employment practice that is unlawful because of its disparate impact) prohibited under section 703, 704, or 717 of the Act (42 U.S.C. 2000e-2 or 2000e-3), and provided that the complaining party cannot recover under section 1977 of the Revised Statutes (42 U.S.C.1981), the complaining party may recover compensatory and punitive damages as allowed in subsection (b), in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964, from the respondent.

(b) Compensatory and Punitive Damages. —

* * * * * * * * * * * * * * * * * * * * * * * *

(c) Jury Trial. — If a complaining party seeks compensatory or punitive damages under this section —

(1) any party may demand a trial by jury; and

(2) the court shall not inform the jury of the damage amount limitations described in subsection (b)(3).

(emphasis added) In short: under the Civil Rights Act of 1991 (provided the complaining party cannot recover under 42 U.S.C. § 1981), victims of unlawful intentional discrimination are granted entitlement to "a jury trial, at which they may recover compensatory damages for `future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses,' as well as punitive damages." United States v. Burke, ___ U.S. ___, ___ n. 12, 112 S.Ct. 1867, 1874 n. 12, 119 L.Ed.2d 34 (1992) (Blackmun, J.) (citing Pub.L. No. 102-166, 105 Stat. 1073).

It is not at all clear that applying these provisions of the Act to Plaintiff's case would constitute a "retroactive" application of the Act. See generally Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 857-858 n. 3, 110 S.Ct. 1570, 1587-88 n. 3, 108 L.Ed.2d 842 (Scalia, J. concurring) (noting that even under a purely prospective application of a statute it is not always clear when a statute should be applied to parties because whether or not the statute should apply "depends upon what one considers to be the determinative event by which retroactivity or prospectivity is to be calculated."). Unlike the appeal of Ms. Landgraf, this case was not "pending" at the time the Act became effective; it was not even filed until after the Act's "effective date" of November 21, 1991. However, as will be explained next, even assuming application of Section 102 of the 1991 Civil Rights Act to this case would constitute a retroactive application of the provisions therein to Defendant, this application appears permissible (again, but for the Fifth Circuit's apparently broad language to the contrary in Landgraf).

A. Language of the Act

It is rudimentary that "the starting point for interpretation of a statute `is the language of the statute itself.'" Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 835, 110 S.Ct. 1570, 1575, 108 L.Ed.2d 842 (1990) (quoting Consumer Product Safety Comm'n v. GTE Sylvania Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980)). Section 402(a) of the Act states as a general matter: "except as otherwise specifically provided, this Act and the Amendments made by this Act shall take effect upon enactment." Pub.L. No. 102-166, 105 Stat. 1073, § 402(a). And the Act explicitly forecloses retroactivity in two situations: (1) cases involving discrimination by United States companies against United States citizens living abroad (Pub.L. No. 102-166, 105 Stat. 1073, § 109(c)); and (2) certain disparate impact cases (Pub.L. No. 102-166, 105 Stat. 1073, § 402(b)).

Under the terms of the Act as a whole, the inclusion of language explicitly prohibiting retroactivity in two provisions might seem to imply (in order to avoid statutory redundancy) the general retroactivity of the Act (i.e., the retroactivity of the rest of the Act). See Davis v. City and County of San Francisco, 976 F.2d 1536, 1551-1553 (9th Cir.1992) ("Where Congress intended that certain sections of the Act should not be applied retroactively, it made specific pronouncements as to those. We will not render those pronouncements a nullity by holding that the rest of the Act is likewise to have no retroactive effect.") (citing Kungys v. United States, 485 U.S. 759, 778, 108 S.Ct. 1537, 1550, 99 L.Ed.2d 839 (1988) (Scalia, J. plurality opinion), inter alia, for the Supreme Court's "repeatedly declared," "cardinal rule" of statutory interpretation — that no provision should be construed as to be entirely redundant). See also Estate of Reynolds v. Martin, 985 F.2d 470, 473 (9th Cir.1993) ("the potential ambiguity of the phrase `take effect upon enactment' disappears when construed in pari materia with the qualifying clause of section 402(a), and with sections 402(b) and 109(c)."); Stender v. Lucky Stores, Inc., 780 F.Supp. 1302, 1304 (N.D.Cal.1992) (same). However, the Fifth Circuit has rejected this thesis. Johnson v. Uncle Ben's, Inc., 965 F.2d 1363, 1372-1374 (5th Cir.1992) (specifically rejecting this reasoning as "resting too much on negative implication," and stating: "We are faced with a deliberately ambiguous statute, and we are asked to resolve political questions Congress was not able to answer."), Pet. for Cert. filed, 61 U.S.L.W. 3356 (Sept. 29, 1992) (Supreme Court Docket No. 92-737).

B. Legislative History

The second place to look for guidance relative to an appropriate statutory construction, legislative history, is likewise unenlightening as to the Act's retroactivity. While the 1991 Act — generally recognized as a product of the war of attrition between Congress and the President — speaks ambiguously on the question of retroactivity, the pronouncements of individual members of Congress, while anything but ambiguous, are nonetheless hopelessly disharmonious. See Johnson v. Uncle Ben's, Inc., 965 F.2d 1363, 1372-1374 (5th Cir.1992).

C. The EEOC's Policy Statement(s)

The Equal Employment Opportunity Commission (EEOC) is responsible for administering Title VII. The EEOC issued a policy statement, dated December 27, 1991, announcing it would "not seek damages under the Civil Rights Act of 1991 for events occurring before November 21, 1991." EEOC Notice No. 915.002 (Dec. 27, 1991), Daily L.Rep. (BNA No. 1 at D-1 (January 2, 1992)) (emphasis added).

Generally, in the absence of clear statutory language or legislative intent on a specific question, courts defer to a reasonable construction of a statute by the agency designated to administer the statute. As the Supreme Court held in Chevron U.S.A. Inc. v. Natural Resources Defense Counsel, 467 U.S. 837, 843, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984), if a court

determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.

However, it is far from clear that the EEOC's issuance of guidelines for EEOC enforcement of the 1991 Civil Rights Act's Title VII amendments is entitled to this, Chevron level of judicial deference. As recently as 1991, the Supreme Court reaffirmed a 1976 dec...