Watkins v. Bessemer State Technical College, Civ. A. No. 91-AR-2773-S.

• Citation: 782 F. Supp. 581
• Decision Date: 06 February 1992
• Docket Number: Civ. A. No. 91-AR-2773-S.
• Parties: Felicia WATKINS, Plaintiff, v. BESSEMER STATE TECHNICAL COLLEGE, Defendant.
• Court: U.S. District Court — Northern District of Alabama

782 F. Supp. 581

Felicia WATKINS, Plaintiff, v. BESSEMER STATE TECHNICAL COLLEGE, Defendant.

Civ. A. No. 91-AR-2773-S.

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

February 6, 1992.

Hycall Brooks, III, Penick & Brooks, Birmingham, Ala., for plaintiff.

R. David Proctor, Sirote and Permutt P.C., Birmingham, Ala., Lee Bains, Bains & Terry, Bessemer, Ala., Edward M. George, Alabama Dept. of Postsecondary Educ., Div. of Legal & Personnel Services, Montgomery, Ala., for defendant.

MEMORANDUM OPINION

ACKER, District Judge.

Felicia Watkins, plaintiff in the above-entitled cause, together with plaintiffs in numerous other pending cases of alleged employment discrimination in this and other courts, have filed motions for leave to amend their complaints to request trial by jury and to claim the kinds of damages provided in the Civil Rights Act of 1991, which was signed into law on November 21, 1991. This particular plaintiff, who is black and claims to be the victim of race discrimination by her employer, Bessemer State Technical College, invoked 42 U.S.C. § 1981 in her original complaint. By invoking the new Act, which contains an addendum to § 1981, she again invokes § 1981.

Ms. Watkins quite naturally agrees with the result, if not with the entire rationale of this court in King v. Shelby Medical Center, 779 F.Supp. 157 (N.D.Ala.1991), a case in which Shelby Medical Center, the employer-defendant, after this court's decision, applied to the Eleventh Circuit for permission to take an interlocutory appeal. Bessemer Tech, defendant in this case, together with defendants in similar cases, just as naturally disagree with King and are asking this court to reconsider the position it took in King that allowed retroactive application of the Civil Rights Act of 1991. Incidentally, in King this court forgot to include Rhodes v. Piggy Wiggly Ala. Distrib. Co., 741 F.Supp. 1542 (N.D.Ala.1990), in the list of this court's opinions on Seventh Amendment application to statutory causes of action.

Both before and after this court's decision in King various courts predictably have gone in different directions on the question of retroactivity vs. prospectivity of the new Act. The Supreme Court not only has a pending petition for writ of certiorari seeking a review of United States v. Peppertree Apts., 942 F.2d 1555 (11th Cir.1991), which was the primary influence for King, but on December 23, 1991, the Eighth Circuit in Hicks v. Brown Group, Inc., 952 F.2d 991 (8th Cir.1991), said:

We believe the question of the retrospective effect of the Civil Rights Act of 1991 in this case should be presented to the Supreme Court in a petition for writ of certiorari.

This court understands that the petition for writ of certiorari which the Eighth Circuit requested in Hicks was filed on January 7, 1992. If there ever was a debate that needed quick resolution by the Supreme Court, the retroactive vs. prospective application of the new Act is it. The lower federal courts (and state courts, which have always had concurrent jurisdiction of cases brought under 42 U.S.C. § 1981, and which, by recent Supreme Court interpretation, acquired concurrent jurisdiction over cases brought under Title VII) may disagree on what the outcome of this debate should be, but they are unanimous in believing that the Supreme Court should decide the matter quickly. The Supreme Court anticipated the seriousness of the general debate over whether or not new statutes should be applied only prospectively in Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 110 S.Ct. 1570, 108 L.Ed.2d 842 (1990), wherein the justices expressed strong but varying points of view on the subject. Bonjorno may or may not be a reliable indicator of what the nine present justices will say as they face the current volatile question of how to apply the new Act.

This court has received excellent briefs on both sides of the issue. This court would be inclined to retreat from King and to subscribe to the persuasive reasoning employed by Judge Gesell in Van Meter v. Barr, 778 F.Supp. 83 (D.D.C.1991) (that is, except for the jury trial question in § 1981 cases, discussed infra), and to reject the reasoning employed by Judge Hart in Mojica v. Gannett Co., Inc., 779 F.Supp. 94 (N.D.Ill.1991), if this court did not deem itself bound by Peppertree, which the employer-defendants in this court's pending cases have not yet distinguished to the satisfaction of this court. Some defendants simply disagree with Peppertree, perhaps hoping that Peppertree will be overruled by the Supreme Court. Other defendants, while disagreeing with Peppertree, also try to distinguish it, an enterprise this court declined to attempt in King and still declines to attempt, believing that Peppertree cannot be distinguished without straining in a transparent way.

Joining in the hope that the issue will be resolved expeditiously by the Supreme Court, this court for the present adheres to its opinion in King. Nevertheless, in an effort to accommodate to differing possible Supreme Court answers, this court will submit to the jury separate verdict forms or special interrogatories for the purpose of creating a means for differentiation between the various forms of relief, distinguishing those admittedly available to Ms. Watkins prior to November 21, 1991, from those that are subject to the current debate and that may or may not turn out to be available to her. This device will provide the capability for obtaining answers to discrete questions, some of which may thereafter become moot. It also will allow this and similar cases to proceed to trial without waiting for the problem to be solved by the Supreme Court.

In King this court stated its belief that the question of entitlement to a jury trial is not necessarily controlled by the outcome of the retroactive vs. prospective argument which surrounds the new Act. Not only does Wooddell v. International Brotherhood of Elec. Workers Local 71, ___ U.S. ___, 112 S.Ct. 494, 116 L.Ed.2d 419 (1991), cited in King, indicate the Supreme Court's current belief, contrary to current Eleventh Circuit precedent, that "lost wages cannot be treated as restitutionary", Id. at ___, 112 S.Ct. at 496, but there is now a new decision by the Court of Appeals for the District of Columbia Circuit, which, from a slightly different perspective, focuses upon the distinction between "lost wages" as an alleged equitable remedy and "lost wages" as an alleged legal remedy. Whether Hubbard v. Environmental Protection Agency, 949 F.2d 453 (D.C.Cir.1991), will make it to the Supreme Court, it nevertheless constitutes a recent, excellent illustration of the evolving argument over how properly to characterize "lost wages". This court happens to agree with Judge Wald's dissent in Hubbard, where she writes:

Back pay or lost wages traditionally have been viewed as money damages and not specific relief, see Dan B. Dobbs, Handbook on the Law of Remedies 924-27, 929-31 (1973) ("Dobbs on Remedies"); Arthur G. Sedgwick, A Treatise on the Measure of Damages 3, 1343 (9th ed. 1920....

* * * * * *

An award of back pay would be the classic case of "money damages" to compensate him for the time he was wrongfully kept off the job.

* * * * * *

Bowen v. Massachusetts, cites Dobbs on Remedies for the basic distinction between compensatory damages and specific relief. Id. 487 U.S. 879 at 895, 108 S.Ct. 2722 at 2732 101 L.Ed.2d 749 (1988). Yet Dobbs' treatise is quite clear that back pay or lost wages is compensatory relief in the nature of damages. See Dobbs on Remedies at 924-27, 69 n. 18. Additionally, classifying back pay as specific, as opposed to compensatory, relief contradicts the Bowen Court's repeated description of the Back Pay Act, 5 U.S.C. § 5596, as a law that provides compensation for past injury, 487 U.S. at 901 n. 31, 904 n. 39, 906 n. 42, 108 S.Ct. at 2735 n. 31, 2737 n. 39, 2738 n. 42.

* * * * * *

The majority relies on Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975), for the proposition that back pay is deemed an equitable remedy under Title VII Maj. op. at 463. The language of Albemarle makes clear, however, that back pay under Title VII is designed to "compensate" or "make whole" the victim of illegal discrimination. Id. at 418-19, 95 S.Ct. at 2372.

The general rule is, that when a wrong has been done, and the law gives a remedy, the compensation shall be equal to the injury. The latter is the standard by which the former is to be measured. The injured party is to be placed, as near as may be, in the situation he would have occupied if the wrong had not been committed.

Id. (quoting Wicker v. Hoppock, 73 U.S. (6 Wall.) 94, 99, 18 L.Ed. 752 (1867)).8

8 The Albemarle Court's use of the term "equitable remedy" in relation to back pay clearly referred to the courts' equitable discretion under Title VII whether or not to award back pay at all. See 422 U.S. at 414-18, 95 S.Ct. at 2370.

949 F.2d at 471-74.

A petition for rehearing, with suggestion for rehearing en banc, has been filed in Hubbard and is pending.

More important to this court's belief that Ms. Watkins is entitled to a jury trial under § 1981 (whether or not under a retrospective application of the new Act she is entitled to compensatory damages for her mental anguish, and/or to punitive damages under Title VII) than the rapidly accelerating recognition of lost wages as compensatory damages which would trigger Seventh Amendment entitlement, is certain language in the new Act itself, which amended 42 U.S.C. § 1981 so that it now reads as follows:

(a) All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains,

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