Sofferin v. American Airlines, Inc.

• Decision Date: 09 March 1992
• Docket Number: No. 88 C 9938.,88 C 9938.
• Citation: 785 F. Supp. 780
• Parties: Jefferey L. SOFFERIN, Plaintiff, v. AMERICAN AIRLINES, INC., D.J. Nelson, and H.K. Tourtellott, Defendants.
• Court: U.S. District Court — Northern District of Illinois

785 F. Supp. 780

Jefferey L. SOFFERIN, Plaintiff, v. AMERICAN AIRLINES, INC., D.J. Nelson, and H.K. Tourtellott, Defendants.

No. 88 C 9938.

United States District Court, N.D. Illinois, E.D.

March 9, 1992.

Raymond E. Belstner, Illinois Cent. Gulf R. Co., James Andrew Romanyak, Gregory Alan Stayart, Romanyak & Associates, Lawrence Thomas Miller, Lawrence T. Miller, Chicago, Ill., for plaintiff.

Debra J. Leonard, Earl L. Neal & Associates, Mark Elliott Furlane, Gardner, Carton & Douglas, Chicago, Ill., for defendants.

ORDER

NORGLE, District Judge.

Before the court is American Airlines, Incorporated's ("American") motion pursuant to Federal Rule of Civil Procedure 12 to strike and dismiss portions of Count I and the entirety of Count II of Jefferey L. Sofferin's ("plaintiff") First Amended Complaint. For reasons detailed below, the motion is granted.

FACTS

The Amended Complaint and briefs reveal that plaintiff was employed as a probationary co-pilot with American from February, 1986, to February, 1987. His goal was to become an American pilot. During his term he flew with several American pilots as part of the flight crew and was evaluated by these pilots on his cockpit performance. Captains D.J. Nelson and H.K. Tourtellott gave plaintiff unfavorable reviews. Plaintiff claims these unfavorable reviews were a consequence of the Captains' alleged anti-Semitic attitudes. Although he admitted that he never told the pilots he was Jewish, he supports his argument by claiming his outward appearance and mannerisms are peculiar to people of Jewish ancestry and thus the Captains knew he was Jewish and could inflict their religious prejudices on him.¹ The reviews of pilots who serve with the probationary pilot on a flight crew are placed in the probationary pilot's file.

At plaintiff's eleven month review with American before a review board, the board was provided with copies of the Nelson, Tourtellott, and other pilots' reports. Plaintiff was also asked a hypothetical question, as was the practice in these reviews, in which he was to specify his reaction to a certain (emergency) situation occurring on board a plane he was piloting. Plaintiff failed to answer the question properly. Plaintiff was never promoted to pilot.

Plaintiff sued American, and Captains Nelson and Tourtellott under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981 of the Civil Rights Act of 1866 claiming American failed to promote him to pilot because of religious discrimination. On January 31, 1992, plaintiff filed his amended complaint seeking both compensatory and punitive damages under 42 U.S.C. § 2000e (Title VII) and 42 U.S.C. § 1981, both as amended by the Civil Rights Act of 1991 (the "Act").² Because the original complaint and the allegedly discriminatory conduct occurred before November 21, 1991, when President Bush signed the Act into law, the court must determine whether the Act is to be applied retroactively.

DISCUSSION

Determining whether a statute is to be applied retroactively is a matter of statutory construction. United States v. Kimberlin, 776 F.2d 1344, 1347 (7th Cir.1985), cert. denied, 476 U.S. 1142, 106 S.Ct. 2251, 90 L.Ed.2d 697 (1986). Although some courts have deferred ruling on whether the Act should be applied retroactively until such time as the Supreme Court rules on the issue, that Court has implicitly suggested it would rather the circuits flesh out the problem before granting certiorari. See Hicks v. Brown Gp., Inc., ___ U.S. ___, 112 S.Ct. 1255, 117 L.Ed.2d 485 (U.S.1991); Holland v. First Virginia Banks, Inc., ___ U.S. ___, 112 S.Ct. 1152, 117 L.Ed.2d 401 (U.S.1992); Gersman v. Group Health Assoc., Inc., ___ U.S. ___, 112 S.Ct. 960, 117 L.Ed.2d 127 (1992) (all granting certiorari, vacating decision, and remanding the cases so that the circuit court could consider applicability of the Act). This court will therefore resolve the matter here.³

I. Review of Applicable Law

The Supreme Court has laid down two separate tests to determine whether a statute should be applied retroactively or prospectively in Bradley v. School Bd. of Richmond, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974) and Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988). There is an "apparent tension" between these two decisions, Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 837, 110 S.Ct. 1570, 1576, 108 L.Ed.2d 842 (1990), and Justice Scalia went so far as to call the conflict irreconcilable. Id. at 841, 110 S.Ct. at 1579 (Scalia, J., concurring). As the court concludes that the result under either rule is the same, this court analyzes the Act under both rules, in a fashion similar to that employed by the Supreme Court in Bonjorno, in reaching its conclusion that the Act should apply prospectively. See id. at 837, 110 S.Ct. at 1576.

A. Bradley v. School Board of Richmond

In Bradley, parents of several school-age children sought attorneys' fees resulting from protracted desegregation litigation in the Richmond, Virginia school system. The district court awarded fees, despite the absence of a specific statutory grant of power to do so, based on the court's equity power and an analogy to the provision in the Civil Rights Act of 1964 which provided for the award of fees and costs. The school board appealed. After submission, but prior to the rendering of the Fourth Circuit's opinion, 20 U.S.C. § 1617 (1970 ed., Supp. II) was amended to provide for the award of attorney's fees in an appropriate school desegregation case. The en banc panel of the Court of Appeals did not consider application of § 1617 to the Bradley case as they had previously held that the law applied only to cases filed after its effective date. Bradley v. School Bd. of Richmond, 472 F.2d 318, 331 n. 57 (4th Cir.1972) (en banc) (citing Thompson v. School Bd. of City of Newport News, 472 F.2d 177, 178 (4th Cir.1972)). The appellate court then reversed the trial court's award of fees finding that the invocation of equity to award fees was not proper. Id. at 332.

The Supreme Court reversed, holding that the Court of Appeals should have applied § 1617 to Bradley. Bradley, 416 U.S. at 724, 94 S.Ct. at 2022. The Court explained that "even where the intervening law does not explicitly recite that it is to be applied to pending cases, it is to be given recognition and effect." Id. at 715, 94 S.Ct. at 2018 (citing Thorpe v. Housing Auth. of Durham, 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969) (expanding on holding of United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 2 L.Ed. 49 (1801))).⁴ Thus, the Court created a presumption that a Congressional enactment was to be applied retroactively to post-judgment decisions pending on appeal. Id.

The Court found, however, that the presumption was not absolute and created two exceptions. First, if Congress has stated an intent to have the law be applied prospectively, it must be so applied. Id. at 715-16, 94 S.Ct. at 2018. Second, no retroactive effect can be given to a law if such an application would result in "manifest injustice". Id. at 716-717, 94 S.Ct. at 2018-19 (citing Thorpe and Schooner Peggy). "Manifest injustice" is a phrase of art, itself comprised of a three-part test used to determine whether a law should be applied retroactively. That tripartite analysis considers, "(a) the nature and identities of the parties, (b) the nature of their rights, and (c) the nature of the impact of the change in law upon those rights." Id. at 717, 94 S.Ct. at 2019.

B. Bowen v. Georgetown University Hospital

Fourteen years later, the Court decided Bowen v. Georgetown University Hospital. There, the Secretary of Health and Human Services promulgated an administrative regulation that attempted to retroactively affect the calculation of the "wage-index" for hospitals under the cost reimbursement program of Medicare. The Court was called upon to decide whether Congress (through the Medicare Act) had authorized the Secretary to create and implement regulations retroactively; the Court held no. Georgetown Hospital, 488 U.S. at 215, 109 S.Ct. at 475. In so holding, the Court stated:

Retroactivity is not favored in the law. Thus, congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result. By the same principle, a statutory grant of legislative rulemaking authority will not, as a general matter, be understood to encompass the power to promulgate retroactive rules unless that power is conveyed by Congress in express terms. Even where some substantial justification for retroactive rulemaking is presented, courts should be reluctant to find such authority absent an express statutory grant. Id. at 208-09, 109 S.Ct. at 471. (citations omitted).⁵

C. Seventh Circuit Law

The Seventh Circuit apparently declared its alliance with the Bradley interpretation by applying it in Federal Deposit Ins. Corp. v. Wright, 942 F.2d 1089, 1095 (7th Cir.1991). In spite of this precedent, the Seventh Circuit has not been entirely consistent in its application of the Bradley analysis. For example, Orrego v. 833 West Buena Joint Venture, 943 F.2d 730 (7th Cir.1991), was issued two weeks after Wright and seemed to apply the Georgetown Hospital rule.⁶ See id. at 736-37. Moreover, Wright might properly be construed as being limited to its facts since the opinion clearly states that there would be no prejudice in application of the Bradley analysis based on the facts of the case before them. Wright, 942 F.2d at 1095 n. 6. Thus, this court views the Seventh Circuit law on the subject as unsettled.⁷ However, regardless of which test is followed, this court finds the result is the same under either analysis — prospective application of the Act is required.⁸

II. Georgetown Hospital Analysis

Regardless of which test a court employs, the text must first be examined. Bonjorno, 494 U.S. at 837-38, 110 S.Ct. at 1577. If the text...