Smith v. Colorado Interstate Gas Co., Civ. A. No. 91-B-752.

• Citation: 794 F. Supp. 1035
• Decision Date: 22 May 1992
• Docket Number: Civ. A. No. 91-B-752.
• Parties: Hieu SMITH, Plaintiff, v. COLORADO INTERSTATE GAS COMPANY, Defendant.
• Court: U.S. District Court — District of Colorado

794 F. Supp. 1035

Hieu SMITH, Plaintiff, v. COLORADO INTERSTATE GAS COMPANY, Defendant.

Civ. A. No. 91-B-752.

United States District Court, D. Colorado.

May 22, 1992.

COPYRIGHT MATERIAL OMITTED

Craig M. Cornish, Cornish and Dell'Olio, Edward A. Gleason, Mulliken, Gleason & Weiner, P.C., Colorado Springs, Colo., for plaintiff.

Raymond M. Deeny, N. Dawn Webber, Sherman & Howard, Michael L. Williams, Colorado Interstate Gas Co., Colorado Springs, Colo., for defendant.

MEMORANDUM OPINION AND ORDER

BABCOCK, District Judge.

I. Background

Plaintiff Hieu Smith (Smith) moves to amend her third amended complaint to conform to the 1991 Civil Rights Act (Pub.L. 102-166, Nov. 21, 1991, 105 Stat. 1071) (the Act) and for reconsideration of two March 16, 1992 magistrate judge orders. At oral argument Smith withdrew her motion to reconsider the magistrate judge's order denying her motion to compel and, thus, I consider only her motion to reconsider the order compelling her to answer Colorado Interstate Gas (CIG)'s discovery requests. Also, CIG moves for partial summary judgment. Finally, both parties have filed numerous motions in limine. All motions were argued on May 8, 1992.

Smith, a Vietnamese female, alleges she was discharged from for her drafting position at CIG because of her gender and race. CIG claims she was fired because her productivity was declining, she made numerous personal phone calls, and she conducted personal business at work. After CIG fired her on March 2, 1990, she filed a Title VII claim with the Colorado Civil Rights Commission (CCRC) and an unemployment compensation claim with the Colorado Division of Employment.

In May 1990 Smith started working for the City of Colorado Springs as a temporary drafter and had applied for a permanent drafting position with the city. In August and September 1990 CIG notified the City of Colorado Springs that Smith had retained a lawyer to file her CCRC charges and unemployment compensation claim. Soon thereafter the City of Colorado Springs notified Smith that she was ineligible for the permanent drafting position and discharged her from her temporary position.

On May 7, 1991 Smith filed this action. Her third amended complaint alleges two Title VII claims (one for discriminatory termination and one for retaliation), two claims under 42 U.S.C. § 1981 (1976) (one for discriminatory termination and one for retaliation), and six state law claims (breach of contract/promissory estoppel, intentional infliction of emotional harm, invasion of privacy, violation of public policy, fraud, and estoppel). In a November 8, 1991 order, 777 F.Supp. 854, I dismissed Smith's Section 1981 claim for discriminatory termination and state law claims for invasion of privacy and violation of public policy, but denied CIG's motion to dismiss her intentional infliction of emotional harm claim.

II. Motion to amend

A. Governing standards

Smith seeks leave to amend her complaint to plead claims under the Act. She seeks to reinstate her Section 1981 discriminatory termination claim, amend her pending Section 1981 retaliation claim, and add prayers under the Act for compensatory and exemplary damages and expert witness fees.

This case was pending when the Act became law on November 21, 1991. The Act states that "except as otherwise specifically provided, this Act and the amendments made by this Act shall take effect upon enactment." 1991 Civil Rights Act, Pub.L. No. 102-166 § 402(a), 105 Stat. at 1099. The Act is silent whether it applies retroactively to pending cases.

To determine whether a statute applies retroactively to pending cases I must look for clear Congressional intent to that effect. DeVargas v. Mason & Hanger-Silas Mason Co., Inc., 911 F.2d 1377, 1390 (10th Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 799, 112 L.Ed.2d 860 (1991); Hansel v. Public Service Co. of Colorado, 778 F.Supp. 1126, 1136 (D.Colo.1991). The language and legislative history of the Act are unclear whether it applies retroactively. Hansel, 778 F.Supp. at 1136.

Absent clear Congressional intent, I must presume that the Act applies prospectively to matters affecting substantive rights and liabilities unless a contrary intent appears. Bennett v. New Jersey, 470 U.S. 632, 639, 105 S.Ct. 1555, 1559-60, 84 L.Ed.2d 572 (1985); DeVargas, 911 F.2d at 1392-1393; Gibbons v. Pan American Petroleum Corp., 262 F.2d 852, 855 (10th Cir.1958). Statutes addressing procedural matters, however, are presumed to apply retroactively. Arnold v. Maynard, 942 F.2d 761, 762 n. 2 (10th Cir.1991) ("Where a new statute deals only with procedure, prima facia it applies to all actions — to those which have accrued or are pending, and to future actions.").

Each of Smith's proposed amendments must be analyzed to determine whether it affects substantive rights or liabilities — to which the presumption against retroactivity applies — or procedural matters — to which the presumption of retroactivity applies. Substantive law creates, defines, and regulates rights and liabilities as opposed to procedural or remedial law which prescribes a method for enforcing the rights or obtaining redress for their invasion. See Ferrero v. Associated Materials, Inc., 923 F.2d 1441, 1446 (11th Cir.1991) (applying Georgia law); Richardson v. Honda Motor Co., Ltd., 686 F.Supp. 303, 304 (M.D.Fla.1988).

B. Section 1981 claims

Smith's proposed Section 1981 claims invoke portions of the Act affecting substantive rights and liabilities. After Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989) discriminatory discharges, such as the one alleged here, were not actionable under Section 1981. In response to Patterson, the Act again made wrongful discharges actionable under Section 1981. See 42 U.S.C. § 1981(b) (1991). Because the Act renewed liability under Section 1981 for discriminatory discharges, it affects substantive rights and liabilities. Where, as here, there is no clear congressional intent to the contrary, I presume that the Section 1981 amendments of the Act do not apply retroactively. Bennett, 470 U.S. at 639, 105 S.Ct. at 1559-60; DeVargas, 911 F.2d at 1393; Hansel, 778 F.Supp. at 1137. Accordingly, amendment would be futile because Smith cannot maintain her proposed Section 1981 claims under the Act.

C. Compensatory and punitive damages

Similarly, the compensatory and punitive damages allowed under the Act impose new liabilities on Title VII defendants. Before the Act became law, Title VII relief was limited to equitable remedies. See 42 U.S.C. § 2000e-5(g) (1972). The Act, however, now exposes Title VII defendants to compensatory and punitive damages. See 42 U.S.C. § 1981a(b) (1991). These new legal remedies differ substantively from the equitable remedies available under Title VII before the Act became law. Because these additional legal remedies create new liability for Title VII defendants, I join the other district courts which have concluded that the addition of these remedies affect substantive rights and liabilities. See, e.g., Sudtelgte v. Sessions, 789 F.Supp. 312, (W.D.Mo.1992); Ribando v. United Airlines, Inc., 787 F.Supp. 827 (N.D.Ill.1992); Thomas v. Frank, 791 F.Supp. 470, (D.N.J. 1992); Van Meter v. Barr, 778 F.Supp. 83 (D.D.C.1991). Once again, where, as here, there is no clear Congressional intent indicating the Act should be applied retroactively, the presumption against retroactivity applies to the Act's imposition of compensatory and punitive damages. Bennett, 470 U.S. at 639, 105 S.Ct. at 1559-60; DeVargas, 911 F.2d at 1393; Hansel, 778 F.Supp. at 1137. Amendment would be futile because these remedies are not available in this case under the Act.

D. Expert witness fees

Expert witness fees, however, are procedural. Bradley v. Richmond School Bd., 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974); Sudtelgte, 789 F.Supp. at 314. Absent clear congressional intent to the contrary, the presumption of retroactivity applies. Arnold, 942 F.2d at 762 n. 2. The Act is unclear regarding retroactivity so I presume that the Act applies retroactively to this procedural issue. Thus, expert witness fees are available here under the Act and amendment is appropriate.

E. Conclusion

Leave to amend shall be freely given when justice so requires and if the following conditions are absent: undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, and futility of the amendment. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). Leave to amend may be denied where the amendment fails to state a claim. Schepp v. Fremont Co., Wyoming, 900 F.2d 1448, 1451 (10th Cir.1990).

Those portions of the Act affecting substantive rights and liabilities do not apply retroactively. Consequently, Smith's proposed amendments setting forth a new Section 1981 discriminatory termination claim, modifying her Section 1981 retaliation claim, and requesting compensatory and punitive damages are futile. Thus, leave to amend as to these proposed claims is denied. Schepp, 900 F.2d at 1451.

Expert witness fees, however, are recoverable here under the Act. Because none of the factors militating against leave to amend are present regarding this amendment, Smith may amend her complaint to add a demand for expert witness fees.

III. Motion to reconsider the magistrate judge's March 16, 1992 order

A magistrate judge's order on a pre-trial matter will not be reconsidered unless clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A) (1990). The magistrate judge's March 16, 1992 order compelling Smith to answer specific discovery requests supporting certain allegations in her third amended complaint is not clearly erroneous or contrary to law. Accordingly, I will not reconsider the order. CIG's request for attorney fees incurred in responding...