Ochoa v. American Oil Company

• Decision Date: 11 February 1972
• Docket Number: Civ. A. No. 70-G-53.
• Parties: Alfred OCHOA et al., Plaintiffs, v. AMERICAN OIL COMPANY, Defendant.
• Court: U.S. District Court — Southern District of Texas

338 F. Supp. 914

Alfred OCHOA et al., Plaintiffs, v. AMERICAN OIL COMPANY, Defendant.

Civ. A. No. 70-G-53.

United States District Court, S. D. Texas, Galveston Division.

February 11, 1972.

Gabrielle K. McDonald, of McDonald & McDonald, Houston, Tex., for plaintiffs.

John B. Abercrombie, L. Chapman Smith, of Baker & Botts, Houston, Tex., and James A. Sullivan, III, Chicago, Ill., of American Oil Co., for defendants.

MEMORANDUM AND ORDER

NOEL, District Judge.

This is a suit, pleaded as a class action, in which it is alleged that defendant has engaged in unlawful employment practices in violation of Title VII of the Civil Rights Act of 1964, 42 U.S. C. § 2000e et seq. (1964). Plaintiffs contend that they were discharged from employment for impermissible reasons, and ask for a declaratory judgment that certain practices, policies and customs of defendant are violative of the Act. The relief sought is an injunction against allegedly unlawful practices, as well as damages in the form of back pay. Having answered, defendant has made timely demand for trial by jury, contending that such is guaranteed by the Seventh Amendment.¹ Plaintiffs have moved that defendant's demand for jury trial be stricken.

The statute is silent as to jury trial.² However, "(t)he right of jury trial in civil cases at common law is a basic and fundamental feature of our system of federal jurisprudence which is protected by the Seventh Amendment. A right so fundamental and sacred to the citizen, whether guaranteed by the Constitution or provided by statute, should be jealously guarded by the courts." Jacob v. New York City, 315 U.S. 752, 62 S.Ct. 854, 86 L.Ed. 1166 (1942). Mindful of this duty, the Court has not desired to rule on the motion at bar without deliberate examination of a question which has not to date received thorough consideration by any court of higher authority. Accordingly, the Court has requested extensive briefing on the point, a task which has been commendably discharged by both counsel.

When a new cause of action is created by Congress, and the statute is silent as to the mode of trial, the jury trial issue is determined by analogizing the new action to its historical counterpart. 5 Moore's Federal Practice § 38.11 (7). Similarly, if the statute by its terms or clear intent excludes the jury or diminishes its function, its constitutionality is measured by the same standard. Cf. Parsons v. Bedford, Breedlove & Robeson, 28 U.S. (3 Pet.) 432, 448, 7 L.Ed. 732 (1830). If the historical analogue was tried to a jury at English common law in 1791, then it is triable by right to a jury today in contemplation of the Seventh Amendment. United States v. Wonson, 28 F.Cas. p. 745, No. 16,750 (C.C.D.Mass.1812); Capital Traction Company v. Hof, 174 U.S. 1, 19 S.Ct. 580, 43 L.Ed. 873 (1899); Slocum v. New York Life Insurance Company, 228 U.S. 364, 33 S.Ct. 523, 57 L.Ed. 879 (1913).

The modern action and its ancient equivalent need not be identical. "In a just sense, the amendment 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." Parsons v. Bedford, Breedlove & Robeson, supra, 28 U.S. at 446 (emphasis added). Again in United States v. Jepson, 90 F.Supp. 983, 986 (D.N.J.1950), it was aptly stated that "when a federal statute embraces a common-law form of action, that action does not lose its identity merely because it finds itself enmeshed in a statute."

The right of action involved in the instant case was created by the Civil Rights Act of 1964, and the remedy is codified at 42 U.S.C. § 2000e-5(g), which provides in relevant part:

(g) If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice.)

In determining whether a common law cause of action is enmeshed in the statute set out above, it is instructive to examine the manner in which the problem has been solved in the context of other statutory causes of action.

United States v. Jepson, supra, was a suit by the Government to recover rents collected by defendants in excess of maximum legal rents promulgated by the Emergency Price Control Act of 1942, and for treble damages. As in the case at bar, the plaintiff argued that defendant had no right to a jury trial because the action was novel and of statutory origin. The Court rejected this approach, holding that the suit for the penalty was analogous to the common law action for debt and thus triable to a jury. As stated in United States v. Mundell, 27 F.Cas. p. 23, No. 15,834 (C.C.D.Va. 1795):

A distinction is sometimes taken between a suit at common law and a suit upon a statute, where the latter is grounded upon different principles from the former, in which case perhaps it may properly be said that the one is a trial at common law, the other upon the statute .... thus, in this case, though it be an action on the statute, it is an action of debt, which is a common law action, and will be tried in a common law manner... Whatever, therefore, the laws order anyone to pay, that instantly become a debt which he hath before hand contracted to discharge....

Cf. United States v. Mesna, 11 F.R.D. 86 (D.C.Minn.1950). See also Simmons v. Avisco, Local 713, Textile Workers Union, 350 F.2d 1012 (4th Cir. 1965), which was a suit brought by a union member against his union pursuant to the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 1412. He sought an injunction against suspension as well as damages for lost income and other injuries. In holding that trial by jury was proper, the Court stated:

The right asserted is indeed one created by statute, but we do not agree that a jury trial is necessarily unavailable because the suit for damages is one to vindicate a statutory right. There is no cleavage between rights existing under common law and rights established by enacted law, where the relief sought is an award of damages.

350 F.2d 1018, discussed and deemed "persuasive" by Wisdom, J., in International Brotherhood of Boilermakers, Etc. v. Braswell, 388 F.2d 193 (5th Cir. 1968), certiorari denied 391 U.S. 935, 88 S.Ct. 1848, 20 L.Ed.2d 854 (1968). See Paley v. Greenberg, 318 F.Supp. 1366 (S.D. N.Y.1970).

Olearchik v. American Steel Foundries, 73 F.Supp. 273 (W.D.Pa.1947), was an action to recover overtime compensation and liquidated damages under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. In holding the Seventh Amendment applicable to such a suit, the Court observed that "(n)otwithstanding that its virtue is now hidden behind the camouflage of a `Civil action'; still there it stands in the strength and dignity of pure logic, an action in assumpsit, on contract, at law." 73 F.Supp. at 280. Accord, Lewis v. Times Publishing Company, 185 F.2d 457 (5th Cir. 1950) (per curiam).

On the same reasoning, it has been held that an action by the United States to collect unpaid federal taxes, as distinguished from tax lien foreclosure, is triable by right to a jury, on the ground that a suit brought by the Crown to recover taxes was tried to a jury in the Court of Exchequer prior to 1791. Damsky v. Zavatt, 289 F.2d 46 (2nd Cir. 1961); see Note, 46 Minn.L.Rev. 643 (1962). Damsky was approved without "unqualified enthusiasm" in Gefen v. United States, 400 F.2d 476 (5th Cir. 1968), certiorari denied 393 U.S. 1119, 89 S.Ct. 990, 22 L.Ed.2d 123 (1969), where the Court of Appeals for this Circuit noted that "although we may wish to ignore certain outdated concepts of yore, our recourse to modern legal principles is restricted severely by the plain words of the Seventh Amendment." 400 F.2d at 479 fn. 5.

Plaintiffs, on brief, accurately observe that racial or national origin discrimination in employment was not actionable at common law. It is obvious, of course, that Title VII, a "socially remedial statute", Georgia Power Company v. Equal Employment Opportunity Commission, 412 F.2d 462, 466 fn. 6 (5th Cir. 1969), is not merely declaratory of the common law. This, however, does not answer the proper and more narrow question, to wit: whether discharge of an employee (for any legally wrongful reason) would support an action for recovery of back pay tried to a jury at common law. If so, the issue of entitlement to back pay in the instant case is a "legal" issue. The point was made in Martin v. Detroit Marine Terminals, Inc., 189 F.Supp. 579, 582 (E.D.Mich.1960), where the Court, after noting that a suit for unpaid overtime compensation and liquidated damages under the Fair Labor Standards Act was analogous to the common law action of debt or assumpsit, stated:

It, therefore, appears that the jury trial protected by the 7th Amendment goes only to those issues in an action at law which historically were triable to a jury in England prior to 1791. In other words, in determining the scope of the 7th Amendment with respect to one issue in a statutory action which is generally triable to a jury, the test is not whether such action is more or less broadly analogous to an established common-law action, but rather whether such issue must, by analogy or because of historical considerations, be characterized as a `legal' issue.

A. Does the provision of Title VII which authorizes suit for back pay by an unlawfully dismissed employee embrace a common law action? The remedies available to the wrongfully discharged servant at common law were three:

(1) Assumpsit on quantum meruit: the servant acquiesced in the contract's rescission by the wrongful act of the...