Maher v. City of Chicago

• Decision Date: 21 November 2006
• Docket Number: No. 03 C 3421.,03 C 3421.
• Citation: 463 F.Supp.2d 837
• Parties: Jerome MAHER, Plaintiff, v. CITY OF CHICAGO, Defendant.
• Court: U.S. District Court — Northern District of Illinois

463 F.Supp.2d 837

Jerome MAHER, Plaintiff, v. CITY OF CHICAGO, Defendant.

No. 03 C 3421.

United States District Court, N.D. Illinois, Eastern Division.

November 21, 2006.

Robert William Fioretti, Law Offices of Robert W. Fioretti, Edward E. Campbell,

Coston, Fioretti & Lichtman, Lonny Ben Ogus, Attorney at Law, Thomas Michael Ryan, Golan & Christie Chicago, 1Z, for Plaintiff.

Naomi Ann Avendano, Mara Stacy Georges, Meera Werth, Torrick Alan Ward, City of Chicago, Law Department Corporation Counsel, Selvyn William Fletcher, Grippo & Elden, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

JEFFREY COLE, United States Magistrate Judge.

Mr. Maher has sued the City of Chicago under the Veterans' Reemployment Rights Act of 1974 ("VRRA"), 38 U.S.C. § 2021 et seq., and the Uniformed Services and Reemployment Rights Act ("USERRA"), 38 U.S.C. §§ 4301-33 — the two federal statutes that protect the reemployment rights of veterans — and Illinois' Public Employee Armed Services Rights Act. 5 ILCS 330/1 et seg. The background of the case is discussed in Maher v. City of Chicago, 406 F.Supp.2d 1006 (N.D.Ill. 2006). Ignoring its own demand for trial by jury, the City has moved to strike the plaintiffs jury demand. Conceding the absence of an explicit provision for trial by jury,¹ Mr. Maher nonetheless contends that the Seventh Amendment accords him that right. Where, as here, Congress has not explicitly provided for trial by jury, any right to a jury trial must be found in the Seventh Amendment. International Financial Services Corp. v. Chromas Technologies Canada, Inc., 356 F.3d 731, 735 (7th Cir.2004); Kobs v. Arrow Service Bureau, Inc., 134 F.3d 893, 897 (7th Cir. 1998).

The Seventh Amendment provides that "Din suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved. ..." Although the thrust of the Amendment was to preserve the right to jury trial as it existed in 1791, the right extends beyond the common-law forms of action recognized at that time. Curtis v. Loether, 415 U.S. 189, 193, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974). As the Supreme Court noted in Curtis, the basic principle traces its origins to Justice Story's decision in Parsons v. Bedford, 3 Pet. 433, 7 L.Ed. 732 (1830):

One of the strongest objections originally taken against the constitution of the United States, was the want of an express provision securing the right of trial by jury in civil cases. As soon as the constitution was adopted, this right was secured by the seventh amendment of the constitution proposed by congress. ...

This amendment declares, that `in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved. ...' The phrase `common law,' found in this clause, is used in contradistinction to equity, and admiralty, and maritime jurisprudence. The constitution had declared, in the third article, `that the judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States, and treaties made or which shall be made under their authority,' & c. and to all cases of admiralty and maritime jurisdiction. It is well known, that in civil causes, in courts of equity and admiralty juries do not intervene, and that courts of equity use the trial by jury only in extraordinary cases to inform the conscience of the court. When, therefore, we find that the amendment requires that the right of trial by jury shall be preserved in suits at common law, the natural conclusion is, that this distinction was present to the minds of the framers of the amendment.

By common law, they meant what the constitution denominated in the third article `law;' not merely suits, which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered; or where, as in the admiralty, a mixture of public law, and of maritime law and equity was often found in the same suit....

In a just sense, the amendment then may well be construed to embrace all suits which are not of equity and admiralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights.

Id at 446-447, 3 Pet. 433. (Emphasis supplied). See Curtis, 415 U.S. at 193, 94 S.Ct. 1005.

Curtis made clear that the right to trial by jury is not inapplicable to causes of action based on statutes, but applies to actions enforcing statutory rights "if the statute creates legal rights and remedies, enforceable in an action for damages in the ordinary courts of law." 415 U.S. at 194, 94 S.Ct. 1005. (Emphasis supplied). In Curtis, the Court concluded that a damage action under Title VIII for violations of the fair housing provisions of the Act sounded basically in tort. The statute merely defined a new legal duty and authorized the courts to compensate a plaintiff for the injury caused by the defendant's wrongful breach. More importantly, the relief sought — actual and punitive damages — was the "traditional form of relief offered in the courts of law." Id. at 195, 94 S.Ct. 1005. The fact that equitable relief was also available did not abridge the right to trial by jury. Id. at 195 n. 10, 94 S.Ct. 1005. See also Marseilles Hydro Power, LLC v. Marseilles Land and Water Co., 299 F.3d 643, 649 (7th Cir.2002)(Posner, J.).²

The "`abstruse historical' search for the nearest 18th-century analog," Tull v. United States, 481 U.S. 412, 417-418, 421, 107 S.Ct. 1831, 95 L.Ed.2d 365 (1987); Chauffeurs, Teamsters & Helpers Local No. 391 v. Terry, 494 U.S. 558, 565, 110 S.Ct. 1339, 108 L.Ed.2d 519 (1990), is less important than determining whether the remedy sought is equitable or legal in nature. See Tull, 481 U.S. at 421, 107 S.Ct. 1831; Curtis, 415 U.S. at 196, 94 S.Ct. 1005. The parties agree that the right and remedies created by VRRA are equitable in nature. (Response to Motion to Strike, at 2-4). It is because they are that most courts that have addressed the question have held that VRRA plaintiffs were not entitled to a jury trial.³

Under VRRA, a plaintiff could be awarded an amount equal to lost wages or benefits. The power to compensate an employee for wages or benefits lost because of the employer's unlawful action was discretionary with the district court and was deemed to be an integral part of the equitable remedy of reinstatement. Troy, 756 F.2d at 1002-1003.⁴ In carrying over that remedy into USERRA, 38 U.S.C. § 4323(d)(1)(B), the Congress presumably had knowledge of the interpretations given to VRRA, at least insofar as it would affect the new statute, and to adopt those interpretations when it enacted USERRA. Cf. Lorillard v. Pons, 434 U.S. 575, 580-81, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978). Thus, if USERRA did no more than reenact VRRA's back pay remedy, the City's argument would have substantial force. But the Congress went much further in crafting USERRA, and because it did, the instructive value typically associated with decisions under VRRA, Maher, 406 F.Supp.2d at 1012 n. 3, has limited utility in the instant case.⁵

Congress enacted USERRA, 38 U.S.C. §§ 4301-33, effective October 13, 1994, to protect the Nation's military by "encourag[ing] noncareer service in the uniformed services." 38 U.S.C. 4301(a)(1). The Act amended and replaced VRRA, and like VRRA, USERRA "must be broadly construed in favor of its military beneficiaries." TVA v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). Accord, McGuire v. United Parcel Serv, 152 F.3d 673, 676 (7th Cir.1998). See also King v. St. Vincent's Hospital, 502 U.S. 215, 221 & n. 9, 112 S.Ct. 570, 116 L.Ed.2d 578 (1991) (VRRA must be broadly construed).⁶ In enacting USERRA, Congress intended to "clarify, simplify, and, where necessary, strengthen the existing veterans' employment and reemployment rights provisions." Gummo v. Vill. of Depew, 75 F.3d 98, 105 (2nd Cir.1996). To that end, Congress chose in USERRA to rectify the absence in VRRA of an express grant of authority for the issuance of injunctive relief, 38 U.S.C. § 4302 (1993), by empowering a district court to "use its full equity powers, including temporary or permanent injunctions, temporary restraining orders, and contempt orders, to vindicate fully the rights or benefits of persons under this chapter," 38 U.S.C. § 4323(e). See H.R.Rep. No. 103-65, at 38 (1994), reprinted in 1994 U.S.C.C.A.N. 2449, 2471.

In addition, in an obvious effort to strengthen the rights of service men and women, Congress added § 4323(d)(1)(C) to USERRA, so that in cases of willful violations of USERRA "[t]he court may require the employer to pay to the person an amount `equal to the amount referred to in subparagraph (B) as liquidated damages. ..."<sup>7</sup> Nothing in the legislative history, the text or the structure of USERRA supports the suggestion that the Congress' addition of the liquidated damage provision in § 4323(d)(2)(A) — a remedy that was unavailable under prior veterans' reemployment rights statutes, see 38 U.S.C. § 2022 (1991); Spratt, 997 F.Supp. at 1140; Duarte, 366 F.Supp.2d at 1037 — was intended to be a component of the restitutionary remedies carried over from VRRA. Cf. Curtis, 415 U.S. at 197, 94 S.Ct. 1005 ("Whatever may be the merit of the `equitable' characterization in Title VII cases, there is surely no basis for characterizing the award of compensatory and punitive damages here as equitable relief."); Tull, 481 U.S. at 424, 107 S.Ct. 1831 (the Clean Water Act does not intertwine equitable relief with the imposition of civil penalties. Instead each kind of relief is separately authorized in a separate and distinct statutory provision).

In TWA v. Thurston, 469 U.S. 111, 119, 125-126, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985), the Supreme Court held that Congress intended for double damage liquidated...