Mojica v. Gannett Co., Inc., s. 91-3921

• Decision Date: 04 March 1993
• Docket Number: Nos. 91-3921,92-1104,s. 91-3921
• Citation: 986 F.2d 1158
• Parties: 61 Fair Empl.Prac.Cas. (BNA) 777, 61 Empl. Prac. Dec. P 42,087 Irene MOJICA, Plaintiff-Appellee, Cross-Appellant, v. GANNETT COMPANY, INC., Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1158

986 F.2d 1158

61 Fair Empl.Prac.Cas. (BNA) 777,

61 Empl. Prac. Dec. P 42,087

Irene MOJICA, Plaintiff-Appellee, Cross-Appellant, v. GANNETT COMPANY, INC., Defendant-Appellant, Cross-Appellee.

Nos. 91-3921, 92-1104.

United States Court of Appeals, Seventh Circuit.

March 4, 1993.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. Glen M. Williams, Visiting Judge. ^*

Armand L. Andry (argued), Oak Park, IL, for plaintiff-appellee.

Lawrence C. DiNardo (argued), Brenda H. Feis, Pamela J. Griffith, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, IL, for defendant-appellant.

Fred Foreman, U.S. Atty., Criminal Div., Chicago, IL, Stuart M. Gerson, Office of U.S. Atty Gen., Jacob M. Lewis, Marleigh D. Dover, Dept. of Justice, Civil Div., Appellate Section, Washington, DC, for amicus curiae U.S.

PER CURIAM.

Pursuant to Circuit Rule 40(f), on February 22, 1993, a majority of the members of this Court voted to hear this matter en banc, to decide whether the panel's proposed disposition of the matter conflicts with the holdings of Mozee v. American Commercial Marine Service Co., 963 F.2d 929 (7th Cir.1992), and Luddington v. Indiana Bell Telephone Co., 966 F.2d 225 (7th Cir.1992). The date for the oral argument will be set in due course.

CUMMINGS, Circuit Judge, dissenting from the decision to rehear en banc. ¹

On February 22, 1993, the Supreme Court decided to consider whether the Civil Rights Act of 1991 is retroactive. Landgraf v. USI Film Products and Rivers v Roadway Express, --- U.S. ----, 113 S.Ct. 1250, 122 L.Ed.2d 649. All circuits to consider this question save the Ninth have decided that Congress did not intend to apply the 1991 Act retroactively to reopen cases tried before the Act. In the absence of such intent, a majority of circuits decided that the Act does not apply to cases tried before its enactment. To my knowledge, however, no circuit has examined the separate question, presented here, of whether Congress intended the 1991 Act to apply to cases tried after its enactment. I think the 1991 Act shows beyond doubt that Congress intended it to apply to new trials brought after the passage of the Act. Therefore, I dissent from the decision to hear this case en banc on the grounds that Mozee and Luddington did not determine this question of Congressional intent, since it was not before them. Those cases should not apply to the claims brought in this case, which was tried after the 1991 Act was passed. I drafted the panel opinion that was circulated under Circuit Rule 40(f), and have decided to publish my views in order to better inform the parties about the issues that divide this Court. ²

Irene Mojica, a female Hispanic-American, works as an overnight disk jockey for WGCI-FM, a radio station owned by Gannett Company that targets an African-American audience in the greater Chicago area. Mojica claims that WGCI promoted less qualified African-American men to prime daytime shifts instead of her, discriminating against her because she is an Hispanic woman. Her case brings before this Court for the first time the question whether and how the Civil Rights Act of 1991 ³ may apply to a case tried after its enactment. Mojica argues that our recent opinions in Mozee v. American Commercial Marine Service Co., 963 F.2d 929 (7th Cir.1992), and Luddington v. Indiana Bell Telephone Co., 966 F.2d 225 (7th Cir.1992), do not require us to overturn a jury verdict for national origin discrimination in her favor under 42 U.S.C. § 1981 and Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e-2. I agree. The Act expresses Congress' unambiguous intent to regulate cases tried after the Act's passage. Mozee and Luddington decided that the Act would not apply retroactively to cases pending on appeal before the Act's passage. Because Mojica's case was tried after the Act was passed, Mozee and Luddington neither require nor allow this Court to disregard Congress' express intent to apply the 1991 Civil Rights Act to her trial.

I.

Gannett's radio stations divide their broadcasts into "shifts" based on the number and type of listeners attracted at different times of day. Day shifts bring more listeners than night shifts; more listeners generate higher advertising revenues; and so-called "drive-time shifts," when commuters are in their cars, earn the most listeners and the highest revenues of all. For disk jockeys, day shifts, and drive shifts in particular, offer higher profile jobs with higher salaries than night shifts. Mojica has worked for a Gannett-owned radio station since 1979, when she took a job as a part-time announcer on WVON-AM, then the AM counterpart to WGCI-FM. She worked a variety of shifts, including the drive shifts, until 1986, when WVON-AM began broadcasting the same programming offered on WGCI. Mojica then worked for WGCI-FM as a part-time announcer. In January of 1987, WGCI gave her a job as a full-time overnight disk jockey ("DJ"), where she remained until July of 1989. She was relegated to part-time work for five months while the station tried a new overnight DJ, but in December of 1989 Mojica returned to her position as a full-time overnight DJ. Since she began working for WGCI in 1986, Mojica has applied for several non-overnight shifts that offered better salaries, more prestige (and presumably more congenial working hours). Rejected each time, she remains a full-time DJ on the 2:00-6:00 AM shift at WGCI.

Mojica filed suit against Gannett in the Northern District of Illinois on July 6, 1990. She charged Gannett with paying women less than men for comparable work, barred by the Equal Pay Act (29 U.S.C. § 206), sex discrimination barred by Title VII of the 1964 Civil Rights Act (42 U.S.C. § 2000e), national origin discrimination barred by 42 U.S.C. § 1981 and Title VII, and retaliation against Mojica for complaining about her treatment, barred by § 1981. On November 12, 1991, anticipating the passage of the Civil Rights Act of 1991, Mojica moved to amend her complaint to demand compensatory and punitive damages and a jury trial. The trial judge granted Mojica's motion on November 27, 1991, six days after the Act became law. Save for the jury demand and the alternate damages calculation afforded in one count of her six-count complaint, however, Mojica's amended complaint was identical to her original complaint. The amended complaint pled no new underlying events or theories of recovery. Trial took place before a jury on December 2-5, 1991. The jury found for Gannett on all claims except national origin discrimination; on that claim, Mojica won $35,000 in lost wages and $125,000 in punitive damages. On December 13, 1991, the trial judge partially granted Gannett's motion for judgment notwithstanding the verdict (j.n.o.v.) and overturned the punitive damages award. The court otherwise upheld the jury's verdict, however, and supplemented it with a series of three equitable pay increases of $5,000, to take effect on January 1 and July 1 of 1992, and January 1 of 1993.

Mojica's complaint argued that because she is Hispanic, WGCI promoted other announcers to better shifts and higher salaries who were less popular with listeners and who had less experience on the air. The evidence at trial showed that Mojica applied for six non-overnight shifts after she began working for WGCI-FM, and all but one were given to black men. She has not received a significant pay raise since 1981; she earns now as then around $30,000 a year (unless she gains relief in this Court). The two star drive-shift DJs at WGCI earn roughly ten times her salary; studies conducted in 1986 showed that Mojica's popularity ratings were within 10 percent of the second star DJ. All other DJs at WGCI rated equally or less popular than Mojica, yet all earn better salaries. Only the stars have more broadcasting experience than Mojica.

Mojica's testimony about her career at WGCI reveals a constant ambition to improve her performance and advance to a daytime or non-overnight shift. Beginning in the early 1980s, she regularly asked her supervisors what she had to do to advance her position at the station. She testified that in response to these queries, her supervisors gave her a variety of advice, and that she responded, experimenting with her style and her delivery. Her testimony also reveals that she became increasingly frustrated over her failure to advance, and was led to understand from conversations with her supervisors that her opportunities were limited because she was not black. She recalled one conversation in particular, occurring in 1986, where the station manager, Marv Dyson, told her that she had not received an evening shift because she was not a black male, and the station wanted a black male. Her testimony mentions other conversations as well, with Dyson or her supervisors, where she was told or she understood that her opportunities were limited because she was not black. The direct examination, however, did not offer approximate dates for all these conversations. Dyson denied ever making such comments.

Gannett argues as an initial matter that the evidence Mojica offered to prove national origin discrimination could not support the verdict, and that the trial court should have granted Gannett's motion for j.n.o.v. in full. Gannett belittles Mojica's testimony as offering evidence of "a single statement allegedly made to her [by Marv Dyson in the early 1980s] * * * and allegedly repeated by him in 1986" (appellant's reply brief at 5). Passing over how Dyson's alleged remarks can be characterized as both a "single statement" and "repeated," Gannett offers nothing to rebut Mojica's allegation of several conversations other than Dyson's denials. The jury was entitled to credit Mojica over Dyson. Yarbrough v. Tower Oldsmobile, Inc., 789 F.2d 508, 514 (7th Cir.1986). A reasonable jury could find that Dyson's remarks, coupled with the evidence of Mojica's ratings and...