Steinle v. Boeing Co.

Decision Date26 February 1992
Docket NumberNo. 90-1337-C.,90-1337-C.
Citation785 F. Supp. 1434
PartiesDorothy S. STEINLE, Plaintiff, v. The BOEING COMPANY and Dudley Morris, Defendants.
CourtU.S. District Court — District of Kansas

James S. Phillips, Jr., Phillips & Phillips, Chartered, Wichita, Kan., for plaintiff.

Mary K. Babcock, Gloria G. Flentje, Mikel L. Stout, Foulston & Siefkin, Wichita, Kan., for defendants.


CROW, District Judge.

This case presents the thorny issue of whether the Civil Rights Act of 1991, which was signed by President Bush on November 21, 1991, applies to the plaintiff's Title VII claims which were pending at the time the Act became law. Steinle filed this case on July 11, 1990. The discriminatory and retaliatory conduct which Steinle alleges occurred prior to November 21, 1991. The court concludes that the Civil Rights Act of 1991 does not apply to Title VII cases pending at the time the Act became law.

Facts and Procedural History

On October 4, 1991, the pretrial conference order was filed. Steinle alleges that the defendants sexually discriminated against her and that the defendants' actions constitute violations of Title VII, the Kansas Act Against Discrimination, and the Equal Pay Act. Specifically, Steinle contends that she was "discriminatorily denied placement in a Professional and Administrative status because of her sex, both as to Analyst 4 and Planner 4 assignments in violation of Title VII and the Kansas Act Against Discrimination." Steinle also alleges that the defendants "retaliated against her because she pursued internal company complaints regarding conduct she contended to be sex-based discrimination." Steinle also asserted a pendent claim for the tort of outrage against her supervisor, Dudley Morris, and Boeing vicariously. A final pretrial status conference was scheduled for February 10, 1992. The trial was set to begin on February 25, 1992.

On February 4, 1992, this court entered an order granting the defendant's motion for partial summary judgment on Steinle's claims for the tort of intentional or reckless infliction of emotional distress. (Dk. 93).

On February 6, 1992, Dorothy S. Steinle filed a motion to amend the pretrial order. In that motion, Steinle requests that she be permitted to insert the following paragraph at the conclusion of her contentions at page 14 of the pretrial order:

As regards each of the claims asserted under Title VII of the Civil Rights Act of 1964 Plaintiff asserts that she has a cause of action arising under the Civil Rights Act of 1991. Plaintiff seeks compensatory damages for emotional pain, mental anguish, inconvenience, embarrassment and humiliation pursuant to Section 102(a)(1) and (b)(3) of said Act.

Steinle also requests permission to add a part six to her "Theories of Recovery":

6. Retaliation and Sex Discrimination claim arising under the provisions of the Civil Rights Act of 1991.

Finally, Steinle seeks permission to amend page 33 of the pretrial order to provide as follows: "Trial will be to the jury as to all of plaintiff's claims."

Steinle "seeks to recover damages for emotional stress, mental anguish, embarrassment, humiliation and inconvenience pursuant to Section 102(a)(1) and (b)(3) of the recent Civil Rights Act of 1991." Steinle contends that the Civil Rights Act of 1991 must be given retroactive application. Steinle acknowledges that the issue of whether the Civil Rights Act of 1991 should be applied retroactively has not yet been resolved. Steinle, however, directs the court's attention to three cases which have given retroactive application to the Act.

After receiving Steinle's motion, the court reviewed the Act and cases which had considered the retroactivity of the Act. In the defendants' response to Steinle's motion to amend the pretrial, which was filed shortly before the pretrial status conference, the defendants contended that the Civil Rights Act should not be applied retroactively. The defendants' brief attempted to counter arguments favoring retroactive application of the Act.1

At the pretrial status conference, the court heard oral argument from each of the parties. Following oral argument, the court, due to the fact that trial was set to begin in a short time, orally announced its conclusion that the Act does not apply retroactively to pending cases and denied Steinle's motion to amend the pretrial order.2 The court indicated that it would issue a written order at a later time. This order constitutes the court's conclusions of law.

Civil Rights Act of 1991

On November 21, 1991, President Bush signed into law the Civil Rights Act of 1991 (Act). One of the stated purposes of the Act is "to provide appropriate remedies for intentional discrimination and unlawful harassment in the workplace." Civil Rights Act of 1991 § 3(1). Another purpose of the Act is "to respond to recent decisions of the Supreme Court by expanding the scope of relevant civil right statutes in order to provide adequate protection to victims of discrimination." Civil Right Act of 1991 § 3(4).3

Section 102 provides in pertinent part:

(a) Right of Recovery.
(1) Civil Rights. In an action brought by a complaining party under section 706 or 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5) against a respondent who engaged in unlawful intentional discrimination (not an employment practice that is unlawful because of its disparate impact) prohibited under section 703, 704, or 717 of the Act (42 U.S.C. 2000e-2 or 2000e-3), and provided that the complaining party cannot recover under section 1977 of the Revised Statutes (42 U.S.C. 1981), the complaining party may recover compensatory and punitive damages as allowed in subsection (b), in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964, from the respondent....

The issue presented by Steinle's motion to amend the pretrial order is whether the Civil Rights Act of 1991 applies to cases pending at the time of its enactment. Unfortunately, the Civil Rights Act does not include any provision expressly indicating whether it should be applied to pending cases. Since its enactment, several courts have confronted the issue of whether the Act applies "retroactively" to pending cases. The results have not been uniform. Some courts have concluded that the statute should be applied retroactively.4 Other courts have concluded that the Act should only be applied prospectively.5

Plain Language of the Act

The starting place of any analysis is the Act itself. See Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 110 S.Ct. 1570, 108 L.Ed.2d 842 (1990) ("The starting point for interpretation of a statute `is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.'") (quoting Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980)). Section 402 of the Act provides:

(a) IN GENERAL. Except as otherwise 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, 1983.6
The phrase shall "take effect" in § 402(a) presumably means that the Act will be in force or go into operation after its enactment. See Black's Law Dictionary 1454 (6th ed. 1990). This language neither compels nor necessarily precludes application of the Act to pending cases.

Several courts have noted that failure to give retroactive application to the Act makes § 402(b) mere surplusage; if the Act were only to prospectively, inclusion of § 402(b) would serve no purpose. See, e.g., Stender, 780 F.Supp. at 1304 (N.D.Cal. 1992). The Supreme Court has commented that it is hesitant "to adopt an interpretation which renders superfluous another portion of that same law." Mackey v. Lanier Collection Agency, 486 U.S. 825, 837, 108 S.Ct. 2182, 2189, 100 L.Ed.2d 836 (1988).

In addition to § 402(b), other portions of the Act also prohibit retroactive application. Section 109(c), which pertains to employment in a foreign country, states that "the amendments made by this section shall not apply with respect to conduct occurring before the date of the enactment of this Act." Similarly, section 116, states that "nothing in the amendments made by this title shall be construed to affect court-ordered remedies, affirmative action, or conciliation agreements, that are in accordance with the law."

While the existence of these sections possibly suggest that the Act is to be applied retroactively to pending cases, other portions of the Act suggest that it does not apply to pending cases. For example, § 110(b), which establishes a Technical Assistance Training Institute, states that § 110 "shall take effect on the date of enactment of the Act." Obviously, because § 110 establishes a new training institute, that portion of the Act can only be prospectively. The phrase "shall take effect on the date of enactment" is used in § 402(a). If the phrases have the same meaning, one possible inference is that the Act was intended to only apply prospectively.7

Another section of the Act which may suggest that the Act does not apply to pending cases is § 102. Under § 102(a)(1) a "complaining party" may seek compensatory and punitive damages. "Complaining party" is defined as "the Equal Employment Opportunity Commission, the Attorney General, or a person who may bring an action or proceeding under title VII...." Civil Rights Act of 1991 § 102(d)(1)(A). Under one possible reading, the Act may only apply to cases filed after November 21, 1991. See Van Meter v. Barr, 778 F.Supp. 83 (D.D.C.1991);8 see also Hansel v. Public Service Co., 778 F.Supp. 1126 (D.Colo.1991).

While the language of the Act...

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