Mass v. Martin Marietta Corp., Civ. A. No. 90 N 1786.

• Decision Date: 27 October 1992
• Docket Number: Civ. A. No. 90 N 1786.
• Parties: Jacob A. MASS, Plaintiff, v. MARTIN MARIETTA CORPORATION, a Maryland corporation, Defendant.
• Court: U.S. District Court — District of Colorado

805 F. Supp. 1530

Jacob A. MASS, Plaintiff, v. MARTIN MARIETTA CORPORATION, a Maryland corporation, Defendant.

Civ. A. No. 90 N 1786.

United States District Court, D. Colorado.

October 27, 1992.

COPYRIGHT MATERIAL OMITTED

Benjamin Sachs, Law Office of Kathleen Mullen, P.C., Denver, Colo., for plaintiff.

John R. Webb and Edwin P. Aro, Holme Roberts & Owen, Karen M. Barry, Associate Gen. Counsel, Legal Dept., Martin Marietta Corp., Denver, Colo., for defendant.

MEMORANDUM OPINION AND ORDER

NOTTINGHAM, District Judge.

Plaintiff Jacob Mass is a black man who is physically handicapped with insulin-dependent diabetes mellitus. Plaintiff worked for Defendant Martin Marietta Corporation at its Waterton Plant in Colorado from February 1987 until he was discharged in June 1989. Plaintiff alleges that he was racially harassed at work. After he reported the racial harassment, he says, defendant retaliated by placing him on an unfair performance improvement plan and eventually discharging him on the pretext that his performance was subpar. Plaintiff also claims that he was refused overtime work and discharged because of his race and handicap. His complaint asserts four claims for relief: (1) a title VII claim for racial discrimination, racial harassment, and retaliation; (2) a claim under 42 U.S.C.A. § 1981 (West 1981) for discriminatory discharge; (3) a Rehabilitation Act claim alleging discrimination on account of his handicap; and (4) a state law claim for outrageous conduct. Jurisdiction is based on 28 U.S.C.A. §§ 1331, 1343, 1367 (West Supp.1992) (federal question, civil rights, supplemental jurisdiction).

The matter is now before the court on four separate motions filed by defendant. These motions raise the following issues: (1) whether the Civil Rights Act of 1991 should be applied retroactively to a complaint first filed prior to the Act and thereafter amended to assert rights and remedies available under the Act; (2) whether plaintiff is entitled to a jury and punitive damages as part of his title VII claim; (3) whether plaintiff is entitled to maintain a section 1981 claim for discriminatory discharge; (4) whether plaintiff's retaliation claim is reasonably related to the allegations of racial discrimination and harassment contained in the administrative charges he filed with the Colorado Civil Rights Commission hereinafter "CCRC"; (5) whether plaintiff has met his burden of producing evidence that defendant receives federal financial assistance — an essential element of plaintiff's Rehabilitation Act claim; and (6) whether a reasonable jury could conclude that defendant's conduct was outrageous. I conclude as follows: (1) the Civil Rights Act of 1991 does not apply retroactively; (2) plaintiff is not entitled to a jury or punitive damages as part of his title VII claim; (3) section 1981 does not permit a claim for discriminatory discharge; (4) plaintiff's retaliation claim is not reasonably related to plaintiff's discrimination and harassment claims; (5) plaintiff has failed to produce evidence from which a reasonable jury could conclude that defendant receives federal financial assistance; and (6) there is a genuine issue of material fact as to whether defendant's conduct was outrageous.

FACTS

In February 1987, plaintiff was employed as a radiographic inspector at defendant's Waterton Plant in Colorado, which manufactures space vehicles and is part of defendant's Astronautics Group. In late fall 1988, plaintiff took time off from work to receive medical care related to his diabetes. On January 16, 1989, plaintiff was cleared by his doctor to work overtime. Plaintiff alleges that, between January and June 1989, he was refused overtime work because of his handicap and race.

Between September 1988 and March 1989, according to plaintiff, he was subjected to racial harassment. Plaintiff claims that defendant's employees made several racial remarks, including calling him a "dumb fucking nigger." Plaintiff maintains that several racially derogatory jokes were photocopied and left on his desk. Plaintiff alleges that, despite his complaints about the racial comments and jokes, defendant took no action. Defendant responds by asserting that it investigated the incidents of racial harassment and found plaintiff's complaints to be unfounded.

In early 1989, defendant evaluated plaintiff's performance and gave him a marginal rating. Plaintiff claims this was done in retaliation for his complaints about racial harassment and because he is black. Defendant responds that plaintiff received a low rating because of his poor work performance, excessive absenteeism, and excessive phone use. Plaintiff was placed on a performance improvement plan (PIP) for 90 days for the purpose of giving him an opportunity to improve his rating. Plaintiff claims that the PIP was discriminatory and unreasonably harsh. According to defendant, plaintiff's work did not improve under the PIP and plaintiff was told in June that he had one week to improve his work substantially. Because plaintiff's work did not improve, defendant terminated plaintiff's employment effective June 23, 1989.

Plaintiff thereafter filed a charge with the CCRC, which investigated the matter and forwarded its findings to the Equal Employment Opportunity Commission hereinafter "EEOC". In July 1990, the EEOC notified plaintiff of his right to sue. Plaintiff filed his complaint in this case on October 5, 1990. On January 20, 1992, with leave of court, plaintiff filed an amended complaint, alleging the same four claims, but asserting entitlement to the newly-enacted rights and remedies available under the Civil Rights Act of 1991.

ANALYSIS

I. RETROACTIVITY OF THE CIVIL RIGHTS ACT OF 1991

Defendant moves to dismiss plaintiff's amended complaint "insofar as it relies on the application of the Civil Rights Act of 1991." Defendant's Motion to Dismiss Amended Complaint (filed Feb. 10, 1992). In response, plaintiff urges that the Civil Rights Act of 1991 should be applied retroactively to his claims. All of the allegedly discriminatory conduct described in both the complaint and the amended complaint occurred before November 21, 1991, the date on which President Bush signed the Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071 (1991) hereinafter "the Act".

The Act makes several important changes to section 1981 and title VII. Section 101(b) of the Act expands the scope of section 1981 to include essentially all forms of racial discrimination in the making, performance, enforcement, and termination of contracts, overturning the limitations judicially imposed on section 1981 by Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). The Act also expands liabilities and remedies available under title VII. Under the law existing before passage of the Act, title VII authorized only equitable remedies, including backpay and reinstatement. Jackson v. Pool Mortgage Co., 868 F.2d 1178, 1181 n. 4 (10th Cir.1989); 42 U.S.C.A. § 2000e-5(g) (West 1981). A plaintiff was not entitled to demand a jury trial under title VII, Snider v. Circle K Corp., 923 F.2d 1404, 1407 (10th Cir.1991), or to recover compensatory or punitive damages, Skinner v. Total Petroleum, Inc., 859 F.2d 1439, 1443 (10th Cir.1988). Before the Act was signed, neither section 1981 nor title VII permitted an award of expert witness fees to the prevailing party. West Virginia Univ. Hosps., Inc. v. Casey, ___ U.S. ___, 111 S.Ct. 1138, 1139, 113 L.Ed.2d 68 (1991). Now, under section 102 of the Act, a plaintiff can request a jury trial and, within certain specified limitations, recover compensatory and punitive damages from an employer. Section 113 allows an award of expert witness fees in both title VII and section 1981 actions. Plaintiff's amended complaint seeks to take advantage of all these changes.

In determining whether the Act applies retroactively, I must look initially to congressional intent. DeVargas v. Mason & Hanger-Silas Mason Co., 911 F.2d 1377, 1392 (10th Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 799, 112 L.Ed.2d 860 (1991). Congressional intent is determined primarily from the "plain" language of the Act and, secondarily, from the Act's legislative history. See id. at 1385-88. I will first consider the language of the Act.

A. Language of the 1991 Act

Section 402 is the Act's general provision defining its "effective date." Section 402(a) states: "Except as otherwise specifically provided, this Act and the amendments made by this Act shall take effect upon enactment." Section 402(a) itself is of no real assistance in divining congressional intent because it does not indicate whether the Act, once it takes effect, should have an effect on pending cases which involve strictly pre-Act conduct. McLaughlin v. New York, 784 F.Supp. 961, 968 (S.D.N.Y.1992). It likewise does not say whether the "effect" of the Act is to be an effect on subsequent cases or an effect on subsequent conduct. Section 402(a) is ambiguous by omission.

Other provisions of the Act shed little light on the issues left unresolved by section 402(a). Section 402(b) exempts from the Act certain disparate impact cases and was intended to prevent application of the Act to specific litigation involving the Wards Cove Packing Company. One other section of the Act specifies when that section is to have effect. Section 109(c) (dealing with employment in a foreign country) expressly indicates that the amendments made by section 109 "shall not apply with respect to conduct occurring before" the Act's effective date.

One might argue that, because sections 402(b) and 109(c) were expressly made prospective, the negative implication of these two sections is that the remaining sections of the Act should be applied retroactively. E.g., Davis v. City & County of San Francisco, 976 F.2d 1536, 1550 (9th Cir.1992). Relying on the canon of statutory construction according to which a statute is construed...