Kennedy v. Alabama State Bd. of Educ.

• Decision Date: 13 January 2000
• Docket Number: No. Civ.A. 89-T-196-N.,Civ.A. 89-T-196-N.
• Citation: 78 F.Supp.2d 1246
• Parties: Brenda J. KENNEDY, et al., Plaintiffs, v. ALABAMA STATE BOARD OF EDUCATION, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

78 F.Supp.2d 1246

Brenda J. KENNEDY, et al., Plaintiffs, v. ALABAMA STATE BOARD OF EDUCATION, et al., Defendants.

No. Civ.A. 89-T-196-N.

United States District Court, M.D. Alabama, Northern Division.

January 13, 2000.

James U. Blacksher, Birmingham, AL, Leslie Proll, Washington, DC, Joe R. Whatley, Jr., Whatley Drake, L.L.C., Birmingham, AL, Maureen Kane Berg, Whatley Drake LLC, Birmingham, AL, Andrew Clay Allen, Whatley Drake, L.L.C., Birmingham, AL, Terry G. Davis, Terry G. Davis, P.C., Montgomery, AL, Kenneth Lamar Thomas, John W. Adams, Jr., Thomas, Means, Gillis, Devlin, Robinson & Seay, PC, Montgomery, AL, Beverly P. Baker, Richard H. Walston, Michael K. K. Choy, Haskell, Slaughter, Young & Gallion, Birmingham, AL, Raymond P. Fitzpatrick, Jr., Fitzpatrick, Cooper & Clark, Birmingham, AL, John W. Adams, Jr., Thomas, Means, Gillis, Devlin, Robinson & Seay, PC, Montgomery, AL, Gregory Brent Stein, Angelique Miche Scheffler Cooper, Stein & Brewster, Mobile, AL, George Lamar Beck, Jr., David B. Byrne, P.C., Montgomery, AL, Henry H. Caddell, Vanessa Arnold Shoots, Thiry & Caddell, Mobile, AL, A. Wesley Pitters, A. Wesley Pitters, P.C., Montgomery, AL, for Plaintiffs.

J. Allen, Schreiber, Gerald Alan Templeton, Lloyd, Schreiber & Gray, P.C., Birmingham, AL, William D. Jones, III, Anthony A. Joseph, Johnston, Barton, Proctor & Powell, Birmingham, AL, William H. Pryor, Jr., Atty. General, Office of the Atty. General, Montgomery, AL, Renee Culverhouse, Office of General Counsel, State of Alabama, Montgomery, AL, Helen Kathryn Downs, Johnston, Barton, Proctor & Powell, Birmingham, AL, for Defendants.

ORDER

MYRON H. THOMPSON, District Judge.

This long-running lawsuit presents the question whether a defendant from whom front-pay relief is sought in civil-contempt proceedings and in claims brought under a number of civil rights statutes has a right to a jury trial. The court holds that such relief does not trigger the right.

This case involves class-action allegations of race and gender discrimination in the employment practices of Alabama's postsecondary educational system. This court has approved a consent decree resolving the race discrimination claims, see Shuford v. Alabama State Bd. of Educ., 846 F.Supp. 1511 (M.D.Ala.1994), and another consent decree resolving the gender discrimination claims, see Shuford v. Alabama State Bd. of Educ., 897 F.Supp. 1535 (M.D.Ala.1995). The defendants in this litigation are the Alabama State Board of Education and various institutions and officials in the postsecondary educational system.

I.

The events giving rise to the jury issue are as follows:

October 15, 1998: Humphrey L. Shuford (a named plaintiff who represented African-Americans in this litigation) and Brenda J. Kennedy (a member of the plaintiff class) filed a motion seeking to have the defendants in this litigation held in civil contempt and sanctioned for their alleged failure to comply with the 1994 consent decree resolving race discrimination claims.¹ As a part of the sanctions, Shuford and Kennedy sought injunctive relief, backpay, and front pay.

November 23, 1998: Kennedy was allowed to intervene and replace Shuford in this litigation as the representative of the African-American class. As result, the pending contempt motion is being sought by Kennedy only.

December 11, 1998: Kennedy filed a separate complaint-in-intervention seeking relief for herself personally. She based her complaint on Title VI of the Civil Rights Act of 1964, 42 U.S.C.A. §§ 2000d through 2000d-4; Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. § 1981a, 2000e through 2000e-17; 42 U.S.C.A. § 1981; the fourteenth amendment to the United States Constitution as enforced through 42 U.S.C.A. § 1983; and the 1994 race-discrimination consent decree.² She properly invoked the jurisdiction of the court pursuant to 28 U.S.C.A. §§ 1443(a)(3), and 1343(a)(4). Kennedy seeks injunctive relief, backpay, and front pay.

December 28, 1998 and thereafter: The defendants filed demands for jury trial on both Kennedy's contempt motion and her complaint-in-intervention.

February 9 and June 16, 1999: Kennedy filed motions to strike the defendants' jury demand.

II.

The jury issue is presented to the court in the two motions to strike filed by Kennedy on February 9 and June 16, 1999. The defendants maintain that, because Kennedy seeks front pay in her contempt motion and in her individual complaint, they are entitled to a jury trial on the issues presented by the motion and the complaint. Kennedy responds in her motions that her front-pay request does not raise a jury issue.

A.

Before turning to whether the defendants are entitled to a jury trial on Kennedy's front-pay request, the court must first determine what this relief called front pay is. Front pay constitutes "prospective lost earnings" that a court may award, Goldstein v. Manhattan Industries, 758 F.2d 1435, 1448 (11th Cir.1985), to a complainant who has been illegally denied a position in order to make her whole. See Padilla v. Metro-North Commuter R.R., 92 F.3d 117, 125-26 (2nd Cir.1996) (stating that front-pay award "serves a necessary role in making victims of discrimination whole in cases where the factfinder can reasonably predict that the plaintiff has no reasonable prospect of obtaining comparable alternative employment"); Barbour v. Merrill, 48 F.3d 1270, 1279 (D.C.Cir.1995) (stating that purpose of front-pay award is "to make a victim of discrimination `whole' and to restore him or her to the economic position he or she would have occupied but for the unlawful conduct of his or her employer") (citation omitted); Carter v. Sedgwick County, Kan., 36 F.3d 952, 957 (10th Cir.1994) (stating that when fashioning a front-pay award, the district court should determine the amount "required to compensate a victim for the continuing future effects of the unlawful discrimination"); Smith v. World Insurance Co., 38 F.3d 1456, 1466 (8th Cir.1994) (district court may award equitable remedy of front pay under Age Discrimination in Employment Act of 1967, 29 U.S.C.A. §§ 621-634, to make party whole).

However, front pay is not a preferred remedy; it is only a substitute for instatement whereby a plaintiff is placed in the same or comparable position that she would have occupied in the absence of an unlawful act. See United Paperworkers Local 274 v. Champion International Corporation, 81 F.3d 798, 805 (8th Cir.1996) (stating that front pay is generally appropriate when reinstatement must be denied); Scarfo v. Cabletron Systems, Inc., 54 F.3d 931, 954 (1st Cir.1995) (district court has discretion to award front pay in Title VII case when reinstatement is "impracticable or impossible"); Hadley v. VAM PTS, 44 F.3d 372, 376 (5th Cir.1995) (equitable remedy of front pay appropriate when reinstatement not feasible).

Rather, instatement is the much preferred remedy because, with it, the complainant is literally made whole with the job illegally denied her, see Duke v. Uniroyal, Inc., 928 F.2d 1413, 1424 (4th Cir. 1991) (reinstatement is the "much preferred" remedy); Squires v. Bonser, 54 F.3d 168, 172 (3rd Cir.1995) ("Reinstatement advances the policy goals of makewhole relief and deterrence in a way which money damages cannot."); Woodhouse v. Magnolia Hospital, 92 F.3d 248, 258 (5th Cir.1996) (concluding that in light of recognition that reinstatement is preferred remedy, district court did not abuse its discretion in ordering plaintiff reinstated).

The general rule therefore is that a person should be instated to an illegally denied position, and front pay is an exception to that rule. And, thus, a court, in the exercise of its remedial discretion, may award front pay only if it can explain why instatement is not appropriate; if it cannot, then the complainant is entitled to instatement. A typical reason given for awarding front pay is where the position sought is no longer available or where personal antagonism between the parties has made instatement infeasible. See Goldstein v. Manhattan Industries, 758 F.2d 1435, 1449 (11th Cir.1985) ("Front pay may be particularly appropriate in lieu of reinstatement where discord and antagonism between the parties would render reinstatement ineffective as a make-whole remedy."); see also Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1182 (2nd Cir. 1996) (upholding front pay award where antagonism between the parties made reinstatement inappropriate); Starceski v. Westinghouse Electric Corporation, 54 F.3d 1089, 1103 (3rd Cir.1995) (affirming district court's denial of reinstatement reasoning that reinstatement not feasible because of lack of available positions and animosity between the parties).

B.

It is with this understanding of front pay that the court now turns to the question of whether front pay is a type of relief to which a seventh-amendment right to a jury trial attaches. The court will first consider whether the right attaches under Title VI, Title VII, § 1981 and § 1983, and will then, in a separate and later discussion, consider if it attaches as part of the civil-contempt proceedings.

When the right to a jury trial is at issue, a court should first look to see if Congress has provided the right to a jury trial; if Congress has created a legal right, a jury trial is required. If Congress has not provided an express right, then the court must decide if a constitutionally protected right to a jury trial exists under the seventh amendment to the United States Constitution. See Tull v. United States, 481 U.S. 412, 417-27 & fn. 3, 107 S.Ct. 1831, 1835-1840 & fn. 3, 95 L.Ed.2d 365 (1987); Lorillard v. Pons, 434 U.S. 575, 585, 98 S.Ct. 866, 872, 55 L.Ed.2d 40 (1978); Waldrop v. Southern Company Services, Inc., 24 F.3d 152, 155 (11th Cir. 1994).

1.

The court will therefore consider whether Congress has provided the right to a jury trial for front-pay requests under any of the statutes relied upon by Kennedy. With regard to Title VI, §...