Percell v. International Business Machines, Inc.

• Decision Date: 28 February 1992
• Docket Number: No. 90-538-CIV-5-D.,90-538-CIV-5-D.
• Citation: 785 F. Supp. 1229
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Robert L. PERCELL, Plaintiff, v. INTERNATIONAL BUSINESS MACHINES, INC., Defendant.

785 F. Supp. 1229

Robert L. PERCELL, Plaintiff, v. INTERNATIONAL BUSINESS MACHINES, INC., Defendant.

No. 90-538-CIV-5-D.

United States District Court, E.D. North Carolina, Raleigh Division.

February 28, 1992.

Robert J. Willis, Avery & Jones, Raleigh, N.C., for plaintiff.

Howard E. Manning, Jr., Michael T. Medford, Manning, Fulton & Skinner, Raleigh, N.C., for defendant.

ORDER

DUPREE, District Judge.

Plaintiff, Robert L. Percell, brings this action alleging that he was terminated from his position with defendant, International Business Machines, Inc. (IBM), on account of his race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. The matter is presently before the court on plaintiff's motion for a jury trial and plaintiff's motion for reconsideration of the court's order dated May 16, 1991 dismissing an additional claim brought pursuant to 42 U.S.C. § 1981, 765 F.Supp. 297.

These two motions are premised on the same ground, passage of the 1991 Civil Rights Act (the "Act"), which was enacted by Congress on November 21, 1991. The Act made several important changes in Title VII and Section 1981, changes which, if applicable, would be relevant to the present case. Therefore, the key question that must be resolved is whether the Act should be applied retroactively. Plaintiff contends that although this action was brought in 1990 and was thus pending at the time the Act went into effect, the new provisions of the Act should be given retroactive effect and applied to the case sub judice. Defendant, conversely, argues that the Act should operate only prospectively and therefore would only be applicable to actions brought after November 21, 1991.

I. BACKGROUND

Plaintiff's original complaint was based solely on Title VII. However, plaintiff subsequently amended his complaint to include causes of action for racially discriminatory discharge under 42 U.S.C. § 1981 and for wrongful discharge under North Carolina common law. In this amended complaint plaintiff also sought compensatory and punitive damages. The court dismissed these two claims pursuant to F.R.Civ.P. 12(b)(6).¹

In regard to the Section 1981 claim the court ruled in its May 19, 1991 order that no cause of action exists under Section 1981 for a discriminatory discharge. See Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989); Williams v. First Union National Bank of North Carolina, 920 F.2d 232, 234 (4th Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 2259, 114 L.Ed.2d 712 (1991). However, Section 101 of the new Act overrules Patterson and Williams by broadening the scope of Section 1981 to include essentially all forms of racial discrimination in employment which would encompass the discriminatory discharge claim asserted by plaintiff. Section 101 of the new Act states, in pertinent part, as follows:

For purposes of Section 1981, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.

As for plaintiff's demand for a jury trial, under the prior version of Title VII this circuit has held that a plaintiff in a Title VII suit is not entitled to a jury trial. Keller v. Prince George's County, 827 F.2d 952, 955 (4th Cir.1987). However, Section 102(c) of the Act allows a party seeking compensatory or punitive damages to demand a trial by jury.²

Plaintiff also makes the argument that even under the existing law he is entitled to a jury trial in his Title VII claim despite the Fourth Circuit's holding in Keller. As support for this argument he points to three recent United States Supreme Court cases that bear indirectly on this issue. See Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820, 110 S.Ct. 1566, 108 L.Ed.2d 834 (1990); Lytle v. Household Manufacturing, Inc., 494 U.S. 545, 110 S.Ct. 1331, 108 L.Ed.2d 504 (1990); Local No. 391 v. Terry, 494 U.S. 558, 110 S.Ct. 1339, 108 L.Ed.2d 519 (1990). However, in Lytle, which involved both Title VII and Section 1981, the Court noted the Fourth Circuit's opinion in Keller but expressly declined to consider the issue of whether that case was correctly decided. Lytle, supra, 110 S.Ct. at 1335 n. 1. Nevertheless, plaintiff cites three cases from the Northern District of Alabama which interpreted Yellow Freight, Lytle and Terry as authorizing jury trials for plaintiffs in Title VII actions. See Walker v. Anderson Electrical Connectors, 736 F.Supp. 253 (N.D.Ala.1990), aff'd on other grounds, 944 F.2d 841 (11th Cir. 1991); Walton v. Cowin Equipment Company, Inc., 733 F.Supp. 327 (N.D.Ala.1990), rev'd, 930 F.2d 924 (11th Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 86, 116 L.Ed.2d 58 (1991); Beesley v. Hartford Fire Insurance Company, 723 F.Supp. 635 (N.D.Ala.1989). However, this court does not agree with the Alabama district court's interpretation of the three Supreme Court cases³ and, therefore, the court finds that Keller was still the controlling law in this circuit prior to the enactment of the new Act on November 21, 1991. Consequently, plaintiff has no right to a jury trial in regard to his Title VII claim under the governing law prior to the new Act. Similarly, plaintiff has no valid claim under Section 1981 under the law prior to enactment of the Act. As such, both of plaintiff's motions hinge on whether the Act applies retroactively.

II. RETROACTIVITY OF THE ACT

Since the passage of the Act, lower courts have been split on the question of whether or not it is to be applied retroactively. The court is aware of at least twenty-four cases that have addressed this issue. In the following cases courts have held that the Act should be applied retroactively: Joyner v. Monier Roof Title, Inc., 784 F.Supp. 872 (S.D.Fla.1992); Graham v. Bodine Electric Company, 782 F.Supp. 74 (N.D.Ill.1992); Bristow v. Drake Street, Inc., No. 87 C 4412, 1992 WL 14262 (N.D.Ill., Jan. 21, 1992); Goldsmith v. City of Atmore, 782 F.Supp. 106 (S.D.Ala.1992); Guess v. City of Portage, No. H 90-276, 1992 WL 8722 (N.D.Ind., Jan. 14, 1992); Stender v. Lucky Stores, Inc., 780 F.Supp. 1302 (N.D.Cal.1992); Mojica v. Gannett Company, Inc., 779 F.Supp. 94 (N.D.Ill. 1991); King v. Shelby Medical Center, 779 F.Supp. 157 (N.D.Ala.1991); Davis v. Tri-State Mack Distributors, Inc., No. LR-C-89-912, 1991 WL 316891 (E.D.Ark., Dec. 16, 1991); LaCour v. Harris County, No. H-89-1532, 1991 WL 321020 (S.D.Tex., Dec. 6, 1991); Watkins v. Bessemer State Technical College, 782 F.Supp. 581 (N.D.Ala.1992). In addition, two courts in this district have held that the Act is retroactive. See Leach v. Northern Telecom, Inc., No. 90-731-CIV-5-BR (E.D.N.C., Jan. 16, 1992); Holmes v. Carolina Power & Light Company, No. 91-508-CIV-5-F (E.D.N.C., Feb. 13, 1992).

Conversely, in the following cases courts have refused to apply the Act retroactively: Tyree v. Riley, 783 F.Supp. 877 (D.N.J. 1992); West v. Pelican Management Services Corporation, 782 F.Supp. 1132, (M.D.La.1992); Doe v. Board of County Commissioners, 783 F.Supp. 1379 (D.Fla. 1992); Burchfield v. Derwinski, 782 F.Supp. 532 (D.Fla.1992); Johnson v. Rice, No. CIV. A. No. 2:85-CV-1318, 1992 WL 16284 (S.D.Ohio, Jan. 24, 1992); Khandelwal v. Compuadd Corporation, 780 F.Supp. 1077 (E.D.Va.1992); Van Meter v. Barr, 778 F.Supp. 83 (D.D.C.1991); Hansel v. Public Service Company, 778 F.Supp. 1126 (D.Col.1991); High v. Broadway Industries, Inc., No. 90-1066-CV-W-3, 1992 WL 33860 (W.D.Mo., Jan. 7, 1992); James v. American International Recovery, Inc., No. 1:89-CV-321, 1991 WL 281734 (N.D.Ga., Dec. 3, 1991).

Any attempt to determine the retroactivity of the Act must begin with the language of the statute. Section 402 of the Act states as follows:

(a) IN GENERAL.—Except as otherwise specifically provided, this Act and the amendments made by this Act shall take effect upon enactment.

(b) CERTAIN DISPARATE IMPACT CASES.—Notwithstanding any other provision of this Act, nothing in this Act shall apply to any disparate impact case for which a complaint was filed before March 1, 1975, and for which an initial decision was rendered after October 30, 1983.

The only other language pertaining to retroactivity is found in Section 109 of the Act which covers "protection of extraterritorial employment." Section 109(c) states:

(c) APPLICATION OF AMENDMENTS.—The amendments made by this section shall not apply with respect to conduct occurring before the date of the enactment of this Act.

Thus, the only safe assumption from the text of the statute is that the Act is not to be given retroactive effect in certain disparate impact cases or cases involving employees working overseas. Since the case sub judice does not fall within either of these two categories, it is clear that the court's task is not resolved by the words of the statute.

Given the aforementioned retroactivity provisions, two competing inferences may be drawn from them. The first possible inference would be that because Congress identified two instances in which the Act is not to be applied retroactively, Congress intended for retroactive application to all other types of Title VII and Section 1981 cases. Conversely, the second possible inference one could draw is that Congress could agree on the retroactivity issue only in regard to discrimination cases that come under Section 402(b) and Section 109(c) and that for all other cases Congress favored allowing courts to decide the issue.

Since the language of the statute is not clear on the retroactivity question, it is appropriate to look to legislative history to determine whether there is clear congressional intent on the issue. Kaiser Aluminum & Chemical Corporation v. Bonjorno, 494 U.S. 827, 837, 110 S.Ct. 1570, 1577, 108 L.Ed.2d 842 (1990). Unfortunately, however, the legislative history demonstrates a split of opinion within Congress as to the extent to which the Act would apply...