Walton v. Cowin Equipment Co., Inc.

• Citation: 733 F. Supp. 327
• Decision Date: 03 April 1990
• Docket Number: Civ. A. No. 89-AR-0263-S.
• Parties: Regina Thomas WALTON, Plaintiff, v. COWIN EQUIPMENT COMPANY, INC., Defendant.
• Court: United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama

733 F. Supp. 327

Regina Thomas WALTON, Plaintiff, v. COWIN EQUIPMENT COMPANY, INC., Defendant.

Civ. A. No. 89-AR-0263-S.

United States District Court, N.D. Alabama, S.D.

April 3, 1990.

James Alan Mendelsohn, Gordon Silberman Wiggins & Childs, Birmingham, Ala., for plaintiff.

James P. Alexander and John W. Hargrove, Bradley Arant Rose & White, Birmingham, Ala., for defendant.

MEMORANDUM OPINION

ACKER, District Judge.

This action was brought by Regina Thomas Walton against Cowin Equipment Company, Inc., Walton's employer, under both 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964 as amended (42 U.S.C. §§ 2000e, et seq.). Walton, a black female and long-time Cowin employee, claimed that because of her race she received a rate of pay lower than white employees who performed substantially similar work. She also claimed that she had been retaliated against by Cowin in response to her having filed an EEOC charge.

At the time Walton filed her action, the federal court consensus was that she had a right to invoke 42 U.S.C. § 1981 and Title VII as dual methods for presenting her complaint of racial discrimination in private employment. Section 1981 clearly provided her a right to trial by jury, a right which she exercised. Walton's claim under § 1981 suddenly evaporated with Patterson v. McLean Credit Union, ___ U.S. ___, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), causing a mid-course correction. Cowin moved for and was granted partial summary judgment (based on Patterson), knocking out the § 1981 aspect. Cowin also moved to strike Walton's jury demand. The court followed the reasoning and the authorities it had relied upon in Beesley v. The Hartford Fire Insurance Company, 717 F.Supp. 781 (N.D.Ala.1989), reconsidered at 723 F.Supp. 635 (N.D.Ala.1989), and denied Cowin's motion.

Walton's Title VII claim was tried to a jury composed of one white male, one black male, four white females, and one black female. No objection was voiced by either party to the other party's preemptory strikes during the selection of these seven jurors. After hearing the evidence and the court's instructions,¹ the jury found that Cowin had discriminated against Walton by paying her less for work substantially similar to work performed by one or more white employees. The jury awarded damages in the amount of $14,622.40. The court directed a verdict in favor of Cowin on Walton's separate claim of retaliation, finding that Walton had not presented evidence of retaliation meeting the substantiality test of Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir.1969).

The court now has for consideration Cowin's alternative motion for judgment notwithstanding the verdict or for a new trial. It asks this court to rethink and, after rethinking, to repudiate Beesley, in light of Sherman v. Burke Contracting, Inc., 891 F.2d 1527 (11th Cir.1990), decided after Beesley. It is reasonable to request another reconsideration of Beesley. This court must do its best to reevaluate the jury trial issue by ascertaining the meaning of Sherman, which, incidentally, is now pending in the Eleventh Circuit on suggestion for rehearing en banc. This court must also consider the lessons, if any, in Teamsters, Local No. 391 v. Terry, ___ U.S. ___, 110 S.Ct. 1339, 108 L.Ed.2d 519 (1990); and in Lytle v. Household Manufacturing, Inc., ___ U.S. ___, 110 S.Ct. 1331, 108 L.Ed.2d 504 (1990), both decided by the Supreme Court after Beesley and after Sherman.

In another case now before this court involving a motion to strike a jury demand in a Title VII case, Cowin's counsel filed a brief which is consistent with the position they now take on behalf of Cowin. That brief contends that Sherman effectively wipes Beesley from the books.² In effect, Cowin's counsel argue that this court's opinions in Beesley have been vicariously reversed by Sherman.

The court finds interesting the fact that Cowin's counsel, appearing for another client in yet another case wherein they represent a plaintiff before this very court, have filed a brief in support of a request for a jury trial. Of all things, Cowin's counsel cites this court's Beesley opinions as authority for the right to a jury trial in a statutorily created cause of action where the statute itself is silent on the subject.³ Admittedly that case is a trademark infringement case, but the predominant relief there sought is equitable. There is, of course, nothing inherently wrong with ambidexterity in an advocate. The ability to argue both sides of a question, depending upon whose ox is being gored, is a lawyer's blessing. This court only mentions the same lawyers' differing opinions about Beesley as an illustration of the fact that the issue dealt with by this court twice in Beesley was apparently not entirely settled by Sherman, even before Local 391 and Lytle were simultaneously decided by the Supreme Court on March 20, 1990.

Although there has been no ruling on application for rehearing in Sherman, this court will, for the purposes of this opinion, treat the opinion in Sherman rendered on January 10, 1990, as if it will survive that application intact. Because Local 391 and Lytle were not decided until March 20, 1990, it was, of course, impossible for the Eleventh Circuit to consider them, and, of course, the Eleventh Circuit in Sherman was not being asked to review Beesley.

There are some striking parallels both in the facts and in the procedural postures among Sherman, Lytle, and the instant case. In all three cases the plaintiff was black and was complaining of employment discrimination based on race. In all three the plaintiff initially invoked both Title VII and § 1981. In all three the plaintiff demanded a jury trial. In all three Patterson had the potential for eliminating plaintiff's § 1981 claim, which would clearly carry the right to a jury trial. On these facts, the Supreme Court in Lytle parts ways with the Eleventh Circuit in Sherman. In Sherman, both the Title VII dispute and the § 1981 dispute had been simultaneously tried to a jury, pre-Patterson. The Eleventh Circuit pointed out that the trial court had "instructed the jury on the elements of a section 2000e-2(a)(1) claim and asked it to answer the following question: `(1). Was the race of the plaintiff ... or the fact of his marriage to Debbie Sherman a white woman, a substantial motivating factor in any decision to terminate his employment ...?'" 891 F.2d at 1530 (brackets in original). Thereupon, the Sherman jury rendered plaintiff's verdicts of $10,000 in compensatory damages and $12,500 in punitive damages. The trial court then entered judgment against Sherman's employer in the jury-determined amount of $22,500. On motion for a new trial, the trial court in Sherman entered the following order:

Willie Lewis Sherman, the prevailing party in the above-captioned case, asks the Court to "clarify" the judgment entered in this case on February 29, 1988, following a two-day jury trial. The jury's findings of fact i.e., its answer to question three, of course, related solely to plaintiff's causes of action against Burke under 42 U.S.C. § 1981. In view of the need to demonstrate a proper regard for the vital and necessary function of the jury in our judicial system, I am prepared to accept and adopt as my own these findings with respect to Sherman's Title VII claim under section 2000e-3(a) as well and to award him no further relief than that provided for under the verdict. Judgment is hereby entered accordingly in the sum of $22,500.

Id. at 1531 (brackets in original but footnote omitted).

On appeal to the Eleventh Circuit neither party complained about the trial court's perfunctory use of the jury's response to the question posed under § 1981 in deciding the § 2000e-3(a) claim, and neither party raised an objection to the trial court's failure to make specific findings of fact and written conclusions of law. A panel composed of Chief Judge Tjoflat, Judge Edmondson and Senior District Judge Atkins held, sua sponte, that Patterson, even though decided after the trial of Sherman's action, had succeeded in an ab initio, after-the-fact elimination of Sherman's claim insofar as based on § 1981:

... in accordance with the mandate in Patterson, we hold that Sherman has no cause of action under section 1981.

Id. at 1535.

Based on this finding, the Eleventh Circuit set aside the jury's punitive award, saying:

Unlike section 1981, which allows for punitive as well as compensatory damages, see Johnson v. Railway Express Agency, 421 U.S. 454, 460, 95 S.Ct. 1716, 1720, 44 L.Ed.2d 295 (1975), Title VII limits a plaintiff to "equitable monetary relief" such as lost wages and work benefits, see Walker v. Ford Motor Co., 684 F.2d 1355, 1364 & n. 16 (11th Cir.1982). We therefore hold that Sherman is not entitled to punitive damages for his Title VII retaliation claim and, accordingly, vacate the $12,500 award of punitive damages entered against Burke.

* * * * * *

... we affirm the award of $10,000 in compensatory damages under 42 U.S.C. § 2000e-3(a) (1982) but vacate the award of $12,500 in punitive damages under section 2000e-3(a).

Id. at 1535-36 (emphasis supplied).⁴

The Eleventh Circuit's express description in Sherman of the $10,000 award as "compensatory damages" is significant not only because of the court's pointed choice of words but because the Eleventh Circuit allowed $10,000 in "compensatory damages" to stand even though it had clearly been fixed by a jury in a Title VII case. This is consistent with what the Eleventh Circuit said in Verbraeken v. Westinghouse Elec. Corp., 881 F.2d 1041 (11th Cir.1989), mentioned by this court in Beesley. This court has found no decision which has ever even hinted, much less held, that "compensatory damages" is a form of "equitable relief." Unless Congress is empowered to make "black" into "white" by the simple device of renaming the two to suit some salutary purpose, a "legal remedy" cannot be converted into "equitable...