Mojica v. Gannett Co., Inc.

• Decision Date: 27 September 1993
• Docket Number: 92-1104,Nos. 91-3921,WGCI-FM,s. 91-3921
• Citation: 7 F.3d 552
• Parties: 62 Fair Empl.Prac.Cas. (BNA) 1561, 62 Empl. Prac. Dec. P 42,577, 62 USLW 2199 Irene MOJICA, Plaintiff-Appellee/Cross-Appellant, v. GANNETT COMPANY, INC., owner ofRadio Station, Defendant-Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 552

7 F.3d 552

62 Fair Empl.Prac.Cas. (BNA) 1561,

62 Empl. Prac. Dec. P 42,577, 62 USLW 2199

Irene MOJICA, Plaintiff-Appellee/Cross-Appellant, v. GANNETT COMPANY, INC., owner of WGCI-FM Radio Station Defendant-Appellant/Cross-Appellee.

Nos. 91-3921, 92-1104.

United States Court of Appeals Seventh Circuit.

Argued June 2, 1993.

Decided Sept. 27, 1993.

Armand L. Andry (argued), Oak Park, IL, for Irene Mojica.

Lawrence C. DiNardo (argued), Brenda H. Feis, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, IL, for Gannett Co., Inc.

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

Jeffrey Cummings, Davis, Miner, Barnhill & Galland, Cynthia A. Wilson, Chicago Lawyers' Committee, Chicago, IL, for amicus curiae Chicago Lawyers' Committee for Civil Rights Under Law, Inc.

Before BAUER, Chief Judge, and CUMMINGS, CUDAHY, POSNER, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION, KANNE, and ROVNER, Circuit Judges.

MANION, Circuit Judge.

Irene Mojica, an Hispanic female, worked the "graveyard" shift as the overnight disc jockey at a popular Chicago radio station, WGCI-FM, owned by Gannett Company, Inc. In July 1990 she sued Gannett claiming, among other things, sex and national origin discrimination under 42 U.S.C. §§ 2000e-2 (Title VII) and 42 U.S.C. § 1981, because she had never been promoted into a better time slot. A few weeks before the scheduled trial, Congress enacted the Civil Rights Act of 1991, Pub.L. 102-166, 105 Stat. 1071-1099. The district court applied the new law retroactively, and the jury awarded Mojica compensatory and punitive damages for her national origin discrimination claim. Gannett then filed a Motion for Judgment Notwithstanding the Verdict. The district court ruled on that motion by reversing the punitive damages award--finding insufficient evidence of malice--but otherwise letting the verdict stand. Gannett appeals the district court's failure to grant j.n.o.v. on the jury's finding of discrimination. Mojica cross-appeals on the district court's decision to strike the punitive damages award.

I. Facts

WGCI-FM is a popular Chicago radio station with programming geared for a black audience. To attract the maximum number of possible listeners, WGCI-FM separates its programming into six air shifts: 1:00am--5:00am (overnight); 5:00am--9:00am (morning drive); 9:00am--2:00pm (mid-day); 2:00pm--6:00pm (afternoon drive); 6:00pm--10:00pm (evening shift); and 10:00pm--1:00am ("quiet storm"). The format for each shift differs depending upon the presumed tastes of expected listeners. For instance, the morning and afternoon drive-time shifts--which attract by far the largest audiences--involve the chatter of the disc jockeys, along with some music, news, and traffic information. The other shifts are music-oriented, with different musical sounds appropriate to the pace and mood of the time of day.

Gannett hired Mojica in 1979, and she held several positions with WGCI-FM and its predecessor, WVON-AM. In January 1987, Mojica became the full-time overnight disc jockey at WGCI-FM. The overnight shift attracted the smallest listening audience and Mojica was paid less than the other disc jockeys at the station. She sought promotion into one of the more lucrative time slots. Between the time Mojica first became the full-time overnight disc jockey and the time she filed suit, five positions became available in non-overnight shifts at WGCI-FM. Four of those positions were filled by black disc jockeys, and one position--the "quiet storm" position which became available in January 1990--was filled by an Hispanic woman, Anna "Coco" Cortez. Mojica remained stuck in the overnight shift.

On July 6, 1990, Mojica filed suit against Gannett in the district court, alleging that she was paid less than male disc jockeys in violation of the Equal Pay Act (29 U.S.C. § 206(d)) and Title VII, and sexually harassed in violation of Title VII. She also claimed that she was denied promotion on the basis of her sex, her national origin, and in retaliation for her complaints of discrimination, in violation of Title VII and 42 U.S.C. § 1981. Discovery proceeded and the district court scheduled trial for early December 1991. But in mid-November, Congress enacted the Civil Rights Act of 1991, thereby amending the prevailing civil rights laws. The district court determined that the new Act applied retroactively. On November 27, 1991, the district court allowed Mojica to amend her complaint to assert claims under the new Act. 779 F.Supp. 94.

Two weeks later, the district court conducted the trial. All of Mojica's claims were tried to a jury. Mojica presented evidence that while she was the overnight disc jockey, five disc jockey positions became available in more lucrative shifts. She applied for each position but the station did not promote her. To prove that the failures to promote were motivated by discriminatory intent, Mojica introduced evidence that she was a popular disc jockey. She also introduced the testimony of Anna "Coco" Cortez, an Hispanic female disc jockey who was hired into one of the positions for which Mojica was passed over. Cortez testified that she was not given the salary which the station promised, and she eventually left her job because of that. Finally, and significantly, Mojica testified that in the winter of 1986, the station's general manager, Marv Dyson, told her that he would not assign her to a non-overnight shift because she was not "a black male." He denied ever making that comment.

The district court gave the jury a combined instruction on Mojica's national origin claims under section 1981 and Title VII. The jury returned a verdict in favor of Mojica on this combined national origin claim, and awarded her $35,000 in compensatory damages and an additional $125,000 in punitive damages. Mojica failed on all of her other claims. After trial, Gannett filed a motion for j.n.o.v. The district court granted Gannett's motion on the punitive damages award, finding insufficient evidence of malice to support the award. The district court otherwise denied Gannett's motion, and let stand the jury's finding of discrimination and its $35,000 award to Mojica. Gannett appeals that denial of its motion. Mojica cross-appeals the district court's decision to strike the punitive damages award.

II. Analysis

In making its decision to apply the new Act retroactively, the district court faced a somewhat uncharted course. Congress had made no definitive statement in the text of the new Act as to whether it should apply retroactively. See Mozee v. American Commercial Marine Service Co., 963 F.2d 929, 932 (7th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 207, 121 L.Ed.2d 148 (1992) ("whether Congress intended prospective or retroactive application of the 1991 Civil Rights Act cannot be deciphered from either the language of the statute or from the legislative history.") Without congressional guidance, the district court was forced to resolve the issue of retroactivity based on existing judicial precedent. But two distinct lines of cases emanated from the Supreme Court of the United States. One line of cases endorsed a presumption in favor of retroactive application unless the statute included a clear legislative statement to the contrary. See Bradley v. School Bd., 416 U.S. 696, 711-712, 94 S.Ct. 2006, 2016-17, 40 L.Ed.2d 476 (1974); Thorpe v. Housing Auth. of City of Durham, 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474 (1968). A second line of cases rejected retroactivity, and observed a presumption favoring prospective application of newly-enacted statutes. See cases cited in Justice Scalia's concurrence in Kaiser Alum. & Chem. Corp. v. Bonjorno, 494 U.S. 827, 855, 110 S.Ct. 1570, 1586, 108 L.Ed.2d 842 (1990). Upon reaching this fork in the road, the district court chose the Bradley-Thorpe path and applied the Civil Rights Act of 1991 retroactively.

In the time since this case was tried, this court has addressed and resolved the conflicting Supreme Court precedent on the issue of retroactivity in Mozee and Luddington v. Indiana Bell Co., 966 F.2d 225 (7th Cir.1992). Both Mozee and Luddington concerned the applicability of the Civil Rights Act of 1991 to cases which were pending on appeal when the new Act became effective. In Mozee, we extensively discussed the prevailing precedent and concluded that "the Supreme Court has left us with two seemingly contradictory lines of cases...." Mozee, 963 F.2d at 935. We resolved this contradiction by establishing a presumption against retroactive application of newly-enacted statutes, stating the general rule that "statutory provisions impacting substantive rights and obligations will not be retroactively applied." Id. at 936. We reasoned that "the better and more fair rule is to hold parties accountable for only those acts that were in violation of the law at the time the acts were performed." Id. In Luddington, we reaffirmed the presumption against retroactivity: "[t]he idea that the law should confine its prohibitions and regulations to future conduct, so that persons subject to the law can conform their conduct to it and thus avoid being punished ... is a component of the traditional conception of the 'rule of law.' " Luddington, 966 F.2d at 227-28. We specifically held that "the [Civil Rights Act of 1991] is applicable only to conduct engaged in after the effective dates (plural because several sanctions carry different effective dates) in the Act, at least if the suit had been brought before the effective date." Id. at 229-30. ¹ We decided Mozee in May of 1992 and Luddington one month later. ² The case now before the entire court was originally argued on October 19, 1992. In his dissent from the decision to rehear this case en banc, Judge Cummings describes the disposition of the panel which...