Loo v. Gerarge

• Decision Date: 01 May 1974
• Docket Number: Civ. No. 73-3967.
• Citation: 374 F. Supp. 1338
• Parties: Sam H. M. LOO, Plaintiff, v. Anthony GERARGE, an Individual, et al., Defendants.
• Court: U.S. District Court — District of Hawaii

374 F. Supp. 1338

Sam H. M. LOO, Plaintiff, v. Anthony GERARGE, an Individual, et al., Defendants.

Civ. No. 73-3967.

United States District Court, D. Hawaii.

May 1, 1974.

James Blanchfield, Welcome S. Fawcett, Honolulu, Hawaii, for plaintiff.

Charles E. Murphy, Honolulu, Hawaii, for defendants.

DECISION ON MOTIONS TO DISMISS AND STRIKE

SAMUEL P. KING, District Judge.

This action arises under Title VII of the Civil Rights Act of 1964¹ for racial discrimination by an employer against the Plaintiff-employee. Five causes of action are alleged: general harassment, denial of transfer requests, demeaning work assignments, discriminatory discharge, and malicious intent. The Plaintiff demands a jury trial, and seeks as relief an injunction, reinstatement plus backpay, attorneys' fees, and compensatory and punitive damages. While Defendants concede that the fourth cause of action for discriminatory discharge is properly before this court, they move under Rules 8 and 12 of the Federal Rules of Civil Procedure to dismiss the other four causes of action, and to strike the demand for a jury trial along with the request for damages.

I agree with Defendants: the Plaintiff has but one valid cause of action here; and under Title VII, he has no rights to a jury trial, or to compensatory and punitive damages.

Motion to Dismiss the First Three Causes of Action:

The court does not rule upon the Defendants' contention that the complaint fails to meet the requirements of Rule 8(a)(2),² for I agree that there is no subject-matter jurisdiction over the three causes of action in question.³ The jurisdiction of this court under § 2000e-5(f)(3) is limited to claims which have been made the subject of a timely charge before the Equal Employment Opportunity Commission (hereinafter "EEOC"). Nishiyama v. N. American Rockwell Corp., supra note 2. Since Plaintiff initially instituted proceedings with the Hawaii Department of Labor, a timely charge before the EEOC would be one filed "within three hundred days after the alleged unlawful employment practice occurred." § 2000e-5(e). In this case, the EEOC charge was filed on February 20, 1973: alleged unlawful employment practices occurring prior to April 27, 1972 are therefore barred.

The court cannot determine which acts happened before or after April 27, 1972 because the first three causes of action fail to specify the dates of the alleged discriminatory practices. Rather than amend his complaint and argue that the discriminatory acts happened after April 27, 1972, the Plaintiff relies instead upon the theory that the Defendant's unlawful practices have "continuing effects" into the present, and are not subject to the three hundred day time limit of § 2000e-5(e). Some violations are undoubtedly continuing in nature, and not subject to the normal statute of limitations for filing before the EEOC. See Pacific Maritime Ass'n and California Stevedore and Ballast Co. v. Quinn, 491 F.2d 1294 at 1296 (9th Cir. 1974); Belt v. Johnson Motor Lines, Inc., 458 F.2d 443 (5th Cir. 1972); Molybdenum Corp. v. E.E.O.C., 457 F.2d 935 (10th Cir. 1972); Bartmess v. Drewrys U.S.A., Inc., 444 F.2d 1186 (7th Cir. 1971); Kohn v. Royall, Koegel & Wells, 59 F.R.D. 515 (S.D.N. Y.1973); Sciaraffa v. Oxford Paper Co., 310 F.Supp. 891 (S.D.Me.1970); Tippett v. Liggett & Myers Tobacco Co., 316 F. Supp. 292 (M.D.N.C.1970); Motorola, Inc. v. E.E.O.C., 317 F.Supp. 282 (D. Ariz. 1968). However, while layoffs followed by failures to rehire, or systems of discrimination against particular groups may be "continuing," isolated and completed acts against a particular individual are not. See, e. g., Gordon v. Baker Protective Services, 358 F.Supp. 867 (N.D.Ill.1973). Once a disparaging remark is made, or a transfer is denied, or a demeaning work assignment is given, it is, without more, a completed and isolated act: such practices do not give the Plaintiff a perpetual right to file charges before the EEOC. See, e. g., Moore v. Sunbeam, 459 F.2d 811, 828-929 (7th Cir. 1972). Although Plaintiff's complaint alleges in the first three causes of action a series of related acts, such as continual disparaging remarks, not one series is supported by a specific unlawful act alleged to have occurred after April 27, 1972. Under these circumstances, and given the generality of the complaint, the alleged discrimination cannot be said to have continued beyond April 27, 1972.

Motion to Strike Demand For Jury Trial:

There is no right to a jury trial in a Title VII action. See, e. g., Robinson v. Lorillard Corp., 444 F.2d 791, 802 (4th Cir. 1971), cert. denied, 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655 (1972); Johnson v. Georgia Highway Exp., Inc., 417 F.2d 1122, 1125 (5th Cir. 1969); Lowry v. Whitaker Cable Corp., 348 F.Supp. 202, 209 n. 3 (W.D.Mo. 1972), aff'd, 472 F.2d 1210 (8th Cir. 1973); United States v. Ambac Industries, 15 Fed.Rules Serv.2d 607 (D. Mass.1971); Gillin v. Federal Paper Board Co., 52 F.R.D. 383, 386 (D.Conn. 1970); Moss v. Lane, 50 F.R.D. 122 (D. C.Va.1970); Roberson v. Great American Ins. Co., 48 F.R.D. 404, 423 (D.C. Ga.1969); Hayes v. Seaboard Coast Line R.R. Co., 46 F.R.D. 49 (D.C.Ga. 1968); Note, Congressional Provision for Nonjury Trial Under the Seventh Amendment, 83 Yale L.J. 401 (1973) (hereinafter "Yale Note"). But cf. King v. Local 818, Laborers, 443 F.2d 273, 275 (6th Cir. 1971) (trial court granted motion for jury trial in Title VII action). The legislative history of Title VII amply supports this conclusion. See, e. g., 118 Cong.Rec. 2277-78 (daily ed. Feb. 22, 1972); 110 Cong.Rec. 6549, 7255 (1964); Comment, The Right to Jury Trial Under Title VII of the Civil Rights Act of 1964, 37 U.Chi.L.Rev. 167, 170 (1969).⁴

Motion to Strike Plaintiff's Claim for Punitive and Compensatory Damages:

Defendants have moved to strike the Plaintiff's damage demands on the grounds that as a matter of law, an award of exemplary and compensatory damages does not lie within the court's authority under § 2000e-5(g) to order "such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay . . . or any other equitable relief as the court deems appropriate."⁵ The statutory language makes clear that only equitable relief may be granted under § 2000e-5(g), and punitive and compensatory damages have traditionally been classified as legal relief.⁶ Furthermore, the arguments against such damage awards made by Judge Carter in Van Hoomissen v. Xerox Corp., 6 FEP Cases 1231 (N.D.Cal.1973) are compelling.⁷See also Howard v. Lockheed-Georgia Co., 372 F.Supp. 854 (N.D.Ga.1974) ("If Congress had intended Title VII to authorize actions for compensatory damages, it would have made clear that desire."); Gutherie v. Colonial Bakery Co., 6 FEP Cases 663 (N.D.Ga.1973) (dismissal of punitive damage claim); Attkisson v. Bridgeport Brass Co., 5 FEP Cases 919 (S.D.Ind.1972) (Title VII claim for compensatory damages for mental suffering struck).

Defendants' Motion to Dismiss Plaintiff's First, Second, Third, and Fifth Cause of Action is hereby granted. Defendants' Motion to Strike Plaintiff's demand for a Jury Trial and request for compensatory and punitive damages is also granted.

1 42 U.S.C. § 2000e et seq. (1970) as amended 42 U.S.C. § 2000 et seq. (Supp. II, 1972).

2 Defendants have moved to dismiss this case under Rule 12 on the grounds that the complaint fails to provide "a short and plain statement of the claim showing that the pleader is entitled to relief" as required by Rule 8(a)(2). Defendants allege that the complaint is so general, vague, and confusing that they cannot safely, fairly or properly prepare responsive pleadings.

Generally, motions to strike are not favored unless there is a gross violation of Rule 8. See J. W. Moore, 2A Federal Practice ¶ 8.12, at 1710 (2d ed. 1970). Furthermore, since the Rule 8 standard of "notice pleading" which grants the plaintiff broad leeway in framing his complaint is the standard which applies to Title VII complaints under § 2000e, courts tend to deny motions based upon an alleged failure to comply with Rule 8. See, e. g., United States v. Gustin-Bacon Div., Certainteed Products Corp., 426 F.2d 539, 542 n. 6 (10th Cir. 1970); Grimm v. Westinghouse Elec. Corp., 300 F.Supp. 984 (N.D.Cal.1969).

On the other hand, the striking of a pleading is within the sound discretion of the court; and as support for their position, the Defendants cite two decisions written by Judge Hauk: Edwards v. N. American Rockwell Corp., 291 F.Supp. 199 (C.D.Cal.1968), and Nishiyama v. N. American Rockwell Corp., 49 F.R.D. 288 (C.D.Cal.1970). In Edwards, the court inter alia ruled that Rule 8(a)(2) was not satisfied when the plaintiff's complaint apparently alleged a "cluster of events" amounting to discrimination including "assignment of dangerous work", "Harassing supervisory techniques", assignment to "dangerous, medically unsound, unsuitable job sites and classifications", and physical damage to eyes and intestines. The court felt that without further specificity, these allegations were insufficient. In Nishiyama, while citing Edwards, Judge Hauk ruled the same way on the same issue when the complaint did not specify individuals who received promotion preferential to plaintiff, or allege other acts of discrimination. However, in Grimm, supra at 986, Judge Zirpoli suggested that the view of Rule 8 in the Edwards case was either dictum or error.

Whether or not the complaint in this case satisfies the minimal pleading standard of Rule 8, the court notes in passing that it often fails to specify individuals, dates, or particular discriminatory acts.

3 Plaintiff's fifth cause of action is based upon allegations of malicious intent. Since the court is striking the claim for punitive damages, this cause of action becomes irrelevant.

4 Recently, in Rogers v. Loether, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974), the Supreme Court ruled...