Rowson v. County of Arlington, Va.

• Decision Date: 19 March 1992
• Docket Number: Civ. A. No. 91-1619-A.
• Citation: 786 F. Supp. 555
• Parties: Diane Y. ROWSON, Plaintiff, v. COUNTY OF ARLINGTON, VIRGINIA, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

786 F. Supp. 555

Diane Y. ROWSON, Plaintiff, v. COUNTY OF ARLINGTON, VIRGINIA, Defendant.

Civ. A. No. 91-1619-A.

United States District Court, E.D. Virginia, Alexandria Division.

March 19, 1992.

Marni Elaine Byrum, Arlington, Va., for plaintiff.

Peter H. Maier, Asst. County Atty., Arlington, Va., for defendant.

MEMORANDUM OPINION

CACHERIS, Chief Judge.

This matter is before the court on Defendant Arlington County's Motion to Dismiss or for Summary Judgment pursuant to Federal Rules of Civil Procedure 12(b)(6) and 56 on the grounds that the Complaint fails to state a claim upon which relief can be granted.

In order to resolve the Motion to Dismiss or for Summary Judgment as to Count II of the Complaint, the court must address an important issue that has been faced, or soon will be faced, by every federal court in the United States until it is resolved by the Supreme Court. This primary issue before the court is whether the provisions of the Civil Rights Act of 1991 apply retroactively to a case pending in federal court on November 21, 1991, the date of enactment. For the reasons discussed below, the Motion to Dismiss or for Summary Judgment is withdrawn as to Count I and denied as to Counts II and III.

I Background

This is an employment discrimination action filed by Diane Rowson against Arlington County. Plaintiff Rowson is a black female who was employed by Arlington County as Bureau Chief, Family Health Services, Department of Human Services from September 5, 1989 until her termination on August 17, 1990. Plaintiff alleges that she was the victim of racially motivated action which culminated in her termination and replacement by a white female. She brings this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Count I), 42 U.S.C. § 1981 (Count II), and 42 U.S.C. § 1983 (Count III).

Defendant first argued in its Motion to Dismiss or for Summary Judgment that Plaintiff's claim under Title VII should be dismissed because Plaintiff did not file a timely charge with the Equal Employment Opportunity Commission ("EEOC"). A timely charge of discrimination with the EEOC is not, however, a jurisdictional prerequisite to suit in federal court. Like a statute of limitations, the filing requirement is subject to waiver, estoppel, and equitable tolling. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982).¹ Thus, in its Reply Memorandum and at oral argument, Defendant withdrew the Motion to Dismiss or for Summary Judgment as to Count I, agreeing that dismissal of the Title VII claim is not proper at this stage of the litigation. The issue of the application of equitable tolling, equitable estoppel, or waiver to the filing limitations period shall go forward as a genuine issue of material fact in dispute. The court will consider each of the remaining counts in turn.

II Discussion

A. The § 1981 Claim (Count II)

Defendant argues that Plaintiff's § 1981 claim should be dismissed because the Fourth Circuit, following the Supreme Court's decision in Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), has held that discriminatory discharges are not actionable under § 1981. Williams v. First Union Nat'l Bank, 920 F.2d 232, 234 (4th Cir. 1990), cert. denied, ___ U.S. ___, 111 S.Ct. 2259, 114 L.Ed.2d 712 (1991). Defendant argues that disparate treatment based on race that occurs during the employment relationship is similarly not actionable under § 1981 because Patterson rejected any claim based on actions which occurred after a contract has been formed. Id. at 234, 235.

The Civil Rights Act of 1991 (the "Act" or the "1991 Act") explicitly rejected the Patterson interpretation of the scope of § 1981 and restored § 1981 protection to the performance and termination of contracts after their formation.² In light of this modification, Plaintiff argues that the court should retroactively apply the Act to this case and deny Defendant's Motion to Dismiss Plaintiff's § 1981 claim.

Two courts in this district have previously addressed the issue of retroactive application of the 1991 Act.³ Both courts found that the 1991 Act should not apply retroactively to a claim brought under Title VII and pending before the court on November 21, 1991, the date of enactment. Thus, plaintiffs were denied leave to amend their complaints to add a demand for trial by jury and claims for compensatory and punitive damages, additional Title VII rights and remedies provided by the 1991 Act.

Both courts also found that the language and legislative history of the Act were unclear and thus turned to legal precedent for guidance. Currently, Supreme Court precedent is in conflict concerning whether new legislation should be applied to pending cases.⁴ In Bradley v. Richmond School Bd., 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974), the Court held that where controlling law changes during the pendency of a case, "a court is to apply the law at the time it renders its decision, unless doing so would result in manifest injustice or there is a statutory direction or legislative history to the contrary." Id. at 711, 94 S.Ct. at 2016. By contrast, in Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988), the Court, citing a long line of cases, stated that retroactivity is not favored in the law and held that legislation should not ordinarily be given retroactive effect unless the language of the statute requires such a result. Id. 109 S.Ct. at 471.⁵

Both this court and Judge Williams found the rule expressed in Bowen to be the better and more recent rule and followed it in finding that the 1991 Act should not be applied retroactively to Title VII claims pending in their courts at the time of the Act's enactment. Moreover, the Fourth Circuit has indicated a preference for the Bowen precedent. In Leland v. Federal Ins. Adm'r, 934 F.2d 524, 527-29 (4th Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 417, 116 L.Ed.2d 437 (1991), the court thoroughly discusses and follows Bowen in holding that recent amendments to the National Flood Insurance Act should not be applied retroactively. A cursory discussion of whether such a ruling would be warranted under Bradley is relegated to a footnote. Id. at 528 n. 7. If Plaintiff in the instant case were seeking retroactive application of the Act's amendments to Title VII, the court would simply follow Bowen and its own prior ruling to deny Plaintiff's request.⁶ The instant case, however, involves a claim under § 1981.

The 1991 Act does not change the original language of § 1981 but merely adds a subsection to clarify the meaning of "to make and enforce contracts." Thus, it can be argued that the Act's amendment to § 1981 was not intended to change the law but only to clarify it and to restore the scope of § 1981 to that originally intended by Congress.⁷ There is a line of cases standing for the proposition that in general, where "Congress enacts a statute to clarify the Supreme Court's interpretation of previous legislation thereby returning the law to its previous posture," the Act must be applied retroactively. Ayers v. Allain, 893 F.2d 732, 754-55 (5th Cir.), vacated on other grounds, 914 F.2d 676 (5th Cir.1990) (en banc), cert. granted on other grounds, ___ U.S. ___, 111 S.Ct. 1579, 113 L.Ed.2d 644 (1991); see Mrs. W. v. Tirozzi, 832 F.2d 748, 755 (2d Cir.1987) ("the 1986 amendment in the present case the Handicapped Children's Protection Act of 1986 simply codifies a congressional purpose long in place which Congress believed the Supreme Court had misinterpreted" thus plaintiffs could bring suit under the Act even though the Act was passed one year after the suit was brought); Bonner v. Arizona Dep't of Corrections, 714 F.Supp. 420, 422-23 (D.Ariz.1989) (Civil Rights Restoration Act of 1987 applies retroactively); Leake v. Long Island Jewish Medical Center, 695 F.Supp. 1414, 1417-18 (E.D.N.Y.1988) ("although the Restoration Act does not include a provision stating that it should be applied retroactively, the use of the terms `restore' and `clarify' indicate that Congress did not intend to change the statute; rather it intended to reject the Supreme Court's interpretation" and congressional intent for retroactive application can be inferred), aff'd, 869 F.2d 130 (2d Cir.1989).

While the fact that Congress rejected the Supreme Court's interpretation of § 1981 may provide some support for applying the Act's amendment to § 1981 retroactively, it is not necessarily conclusive evidence of congressional intent to apply the statute retroactively. DeVargas v. Mason & Hanger-Silas Mason Co., 911 F.2d 1377, 1385 (10th Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 799, 112 L.Ed.2d 860 (1991). And it can be argued that § 1981 does not fall within this category of restorative legislation.⁸ The statements of findings and purposes in the Act can be read to reject the restorative legislation argument. These provisions of the Act do not use the term "overrule," but rather refer to "additional protections"⁹ and "respond to recent decisions of the Supreme Court by expanding the scope of relevant civil rights statutes...."¹⁰ Thus it can be argued that the Act grants additional substantive remedies to § 1981 and the restorative legislation distinction favoring retroactivity does not apply. See Lex K. Larson, Civil Rights Act of 1991 39 (1992) ("the likely conclusion is that the presumption against retroactivity has not been rebutted, and that the new expanded Section 1981 coverage will apply only to discriminatory acts occurring after the effective date of the statute").

The question whether the 1991 Act should be applied retroactively to pending cases is clearly one that must be addressed and resolved by the Supreme Court. This court reviewed sixteen cases which decided the issue of retroactivity in the § 1981 context. The courts generally were divided depending on whether their...