Butts v The City of New York Department of Housing Preservation and Development Brief for Plaintiff-Appellant
Public Court Documents
November 5, 1992
59 pages
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Brief Collection, LDF Court Filings. Butts v The City of New York Department of Housing Preservation and Development Brief for Plaintiff-Appellant, 1992. 4bec113d-b79a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/69bdf229-efc0-4bb7-9896-f213e262cf53/butts-v-the-city-of-new-york-department-of-housing-preservation-and-development-brief-for-plaintiff-appellant. Accessed October 31, 2025.
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92-785CP
No. 92-7850
IN THE
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
GENEVA BUTTS,
Plaintiff-Appellant.
v.
THE CITY OF NEW YORK,' DEPARTMENT OF HOUSING
PRESERVATION AND DEVELOPMENT,
Defendant-Appellee.
On Appeal From the United States District Court
for the Southern District of New York
BRIEF FOR PLAINTIFF-APPELLANT
C. VERNON MASON
Suite 1108
401 Broadway
New York, New York 10013 (212) 219-0147
JULIUS L. CHAMBERS
ERIC SCHNAPPER
NAACP Legal Defense and
Educational Fund,* Inc.
16th Floor
99 Hudson Street
New York, New York 10013
(212) 219-1900
Counsel for Plaintiff-Appellant
CORRECTED COPY
) TABLE OF CONTENTS
Page
DECISION BELOW ....................................... ±
JURISDICTION ......................................... x
ISSUES FOR REVIEW .................................... 2
STATEMENT OF THE CASE ................................ 2
ARGUMENT ............................................. 4
I. THE DISTRICT COURT ERRED IN DISMISSING
PLAINTIFF'S TITLE VII CLAIMS ................ 4
(1) Plaintiff's Post-1988 Promotion Claims
Are Reasonably Related to Her EEOC
Charge ................................ 6
(2) Plaintiff's Post-1988 Claims Regarding
the Terms and Conditions of Her
Employment Are Reasonably Related
to Her EEOC Charge ..................... 3
II. THE DISTRICT COURT ERRED IN HOLDING PLAINTIFF'S
PROMOTION CLAIMS ARE BARRED BY PATTERSON V.
MCLEAN CREDIT UNION. 491 U.S. 164 (1989) .... 9
III. SECTION 101 OF THE 1991 CIVIL RIGHTS ACT SHOULD
BE APPLIED RETROACTIVELY TO THIS CASE ...... 12
(1) The Plain Language of the Act Applies
to Pre-Existing Claims ................ 13
(a) The Language of Sections 402(a),
402 (b) , and 109 (c) 13
(b) Congressional Rejection of
Amendments Excluding Coverage
of Existing Claims ............... 17
(2) The Legislative Debate Indicate That The
Act Applies to Pre-Existing Claims .... 22
(a) Kennedy, Edwards and Fish ........ 2 2
(b) The Dispute Regarding
Section 402(b) 25
(3) Section 101 Should Be Presumed Applicable
To Pe-Existing Claims .............. 30
(a) Bradley v. Richmond School Board
Requires That Section 101 Be
Applied to Pre-Existing Claims ..... 30
(b) New Remedies and Procedures
Enforcing Existing Rights Are
Presumptively Applicable to
Pre-Existing Claims ............... 35
(c) Section 101 Should Be Applied To
Pre-Existing Claims Because it
is Restorative Legislation ........ 42
V. PATTERSON V. McLEAN CREDIT UNION SHOULD NOT BE
APPLIED RETROACTIVELY.................. 44
CONCLUSION............................................. 48
11
CASES
Avers v. Allain.
893 F. 2d 732 (5th Cir. 1 9 9 0 ) ........................ 43
Adams v. Brineaar.
521 F. 2d 129 (7th Cir. 1 9 7 5 ) ........................ 37, 38
Albemarle Paper Co. v. Moody.
422 U.S. 405 ( 1 9 7 5 ) ................................ 32
Allen v. United States.
542 F. 2d 176 (3rd Cir. 1 9 7 6 ) ........................ 37
Almendral v. New York State Office of Mental Health.
743 F. 2d 963 (2d Cir. 1 9 8 4 ) ........................ 4, 5, 7
American Trucking Assns. v. Smith.
496 U.S. 167 (1990) ................................. 46
Bond v. Stanton.
555 F.2d 172 (7th Cir. 1977),
cert, denied, 438 U.S. 916 (1978) ................ 22
Bowen v. Georgetown University Hospital.
488 U.S. 204 ( 1 9 8 8 ) ................................ 40
Bradley v. Richmond School Board.
416 U.S. 696 ( 1 9 7 4 ) ................................ passim
Bristow v. Drake Street. Inc. .
1992 U.S. Dist. LEXIS 499 NiD.Ill. 1991) . . . . 33
Brown v. General Services Administration.
425 U.S. 820 ( 1 9 7 6 ) ................................ 36, 38
Brown v. General Services Administration.
507 F.2d 1300 (2d Cir. 1974),
aff'd, 425 U.S. 820 (1976)............................ 35, 37
Bunch v. United States.
548 F. 2d 336 (9th Cir. 1 9 7 7 ) ........................ 38
Bush v. State Industries. Inc..
599 F. 2d 780 (6th Cir. 1 9 7 9 ) ........................ 39
Carlton v. BAWW. Inc..
751 F. 2d 781 (5th Cir. 1 9 8 5 ) ........................ 16
iii
45
Chevron v. Huson.
404 U.S. 97 (1971) ............................
Colautti v. Franklin.
439 U.S. 379 (1979) ............................
Downs v. Blount.
170 F.15 (9th Cir. 1909) ........................
EEOC v. Arabian American Oil Co..
Ill S. Ct. 1227, 112 L. Ed. 2d 274 (1991) .
E.E.O.C. v. Westinahouse Elec. Corp..
765 F.2d 389 (3d Cir. 1985) ....................
Eastland v. Tennessee Valiev Authority.
553 F.2d 364 (5th Cir. 1977) ....................
Ettincrer v. Johnson.
518 F.2d 648 (3rd Cir. 1975) ....................
Ferrero v. Associated Materials. Inc..
923 F.2d 1441 (11th Cir. 1991) ................
Freeborn v. Smith.
69 U.S. 160 (1865) ............................
Gamble v. Birmingham So. R.R. Co..
514 F.2d 678 (5th Cir. 1975) ....................
Gates v. Collier.
559 F.2d 241 (5th Cir. 1977)
reh'g denied, 588 F.2d 828 (5th Cir. 1979)
Goodman v. Heublein. Inc..
645 F.2d 127 (2d Cir. 1981) ....................
Graham v. Bodine Electric Co.. 1992 U.S. Dist. LEXIS 679
(N.D. 111. 1992) (Memorandum Opinion and Order,
PP- 3, 7) ........................................
Harrison v. Associates Corp. of North America.
917 F.2d 195 (5th Cir. 1990) ....................
Huntley v. Department of Health. Education and Welfare.
550 F.2d 290 (5th Cir.), cert, denied, 434 U.S. 985
(1977) ........................................
15
34
13, 17
33
37
37
33
33
7
22
4
15
11
37
15
In re Amatex Corp..
755 F.2d 1034 (3d Cir. 1985)
In re Grev.
29 B.R. 286, 289 (D. Kan. 1983) . . . .
In re Salem Mortcr. Co. .
783 F.2d 626 (6th Cir. 1986) ................
Insurance Co. of North America v. U.S. Deot. of
• 43
15
Labor (No. 91-4193, opinion JUly 16, 1992).
James Beam Distillina Co. v. Georqia
40
115 L.Ed.2d 481 (1991) ................
Johnson v. Uncle Ben's Inc.,
46
965 F.2d 1363 (5th Cir. 1992) ................
Kirkland v. Buffalo Board of Education,
10, 11
622 F.2d 1066 (2d Cir. 1980) ................
Kocrer v. Ball,
4
497 F.2d 702 (4th Cir. 1974) ................
Laubie v. Sonesta International Hotel Cn-rp. ,
36, 38
752 F.2d 165 (5th Cir. 1985) ................
Leake v. Loner Island Jewish Medical Center,
43
695 F. Supp. 1414 (E.D.N.Y. 1988) . . . .
Leake v. Loner Island Jewish Medical Center.
43, 44
869 F.2d 130 (2d Cir. 1989) ................
Lehman v. Burnley,
40, 43
866 F.2d 33 (2d Cir. 1989) ................
Library of Conaress v. Shaw,
40
478 U.S. 310 (1986) ........................
Litton Systems v. American Tel. & Tel. Co.,
17
746 F.2d 168 (2d Cir. 1984) ................
Long v. Carr. No. 1:88-CV-263-RCF (N.D. Ala.)
Lorance v. AT&T Technologies. Tne.
40
15
490 U.S. 900 (1989) ........................
Louisville & Nashville R.R. Co. v. Mottley,
• • 17
219 U.S. 467 (1911) ........................ • • 22
v
43
Lussier v. Dugger.
904 F.2d 661 (11th Cir. 1990) . . . .
Mackey v. Lanier Collections Agency & Serv.. Inc..
486 U.S. 825 ( 1 9 8 8 ) ................................ 15
Malhotra v. Cotter & Co..
885 F. 2d 1305 (7th Cir. 1989)........................ 11
Mahroom v. Hook.
563 F. 2d 1369 (9th Cir. 1977)........................ 35, 37
Martin v. Wilks.
490 U.S. 755 (1989) ................................. 17
Matter of Busick.
831 F. 2d 745 (7th Cir. 1 9 8 7 ) ........................ 16
Matter of Reynolds.
726 F. 2d 1420 (9th Cir. 1984)........................ 16
McKniaht v. General Motors Corp..
908 F. 2d 104 (7th Cir. 1 9 9 0 ) ........................ 11
Miller v. International Tel. & Tel. Corn..
755 F. 2d 20 (2d Cir. 1 9 8 5 ) ........................ 5
Mojica v. Gannett Co..
57 FEP Cas. 538, 539 (N.D. 111. 1 9 9 1 ) ................ 15, 32
Morgan Guaranty Trust Co. v. Republic of Palau
(No. 91-9224; opinion dated Aug. 5, 1992) . . . . 40
Mozee v. American Commercial Marine Service Co..
940 F. 2d 1036 (7th Cir. 1991)........................ 11
Mrs. W. v. Tirozzi.
832 F. 2d 748 (2d Cir. 1 9 8 7 ) ........................ 42
Owens v. New York City Housing Authority.
934 F. 2d 405 (9th Cir. 1 9 9 1 ) ................ .... 4
Patterson v. McLean Credit Union.
491 U.S. 164 (1989) . . . . . . . . . passim
Place v. Weinberger.
497 F.2d 412 (6th Cir. 1974), vacated, 426 U.S. 932
( 1 9 7 6 ) ............................................ 37
vi
Price Waterhouse v. HoDkins.
490 U.S. 228 (1989) 17
Revis v. Laird.
627 F.2d 982 (9th Cir. 1980) ................
Rodriquez v. General Motors Com. .
904 F.2d 531 (9th Cir. 1990) ................
Rush v. McDonald' s.
966 F.2d 1104 (7th Cir. 1992) ................
Russello v. United States.
464 U.S. 16 (1983) ........................
Sklenar v. Central Bd. of Ed..
497 F. Supp. 1154 (E.D. Mich. 1980)
Smith v._American President Lines. Ltd. r
571 F.2d 102 (2d Cir. 1978) ................
Sperling v. United States.
515 F.2d 465 (3d Cir.), cert, denied, 426 U.S. 919 (1975) ....................................
Standard Oil of Cal, v. United States.
429 U.S. 17 (1976) ....................
35, 37
10
7
14
7
4
37
45
Stender v. Lucky Stores. Inc.. 1992 U.S. Dist. LEXIS 274 (N.D. Cal. 1992) ................................
— Hummel & Schnall v. Atlantic Container Line
894 F.2d 526 (2d Cir. 1990) ................
Taylor v. Western and Southern Life Ins. Co..
966 F.2d 1188 (7th Cir. 1992) .
Thompson v. Sawver.
678 F.2d 257 (D.C. Cir. 1982) .
Thorpe v. Housing Authority of Durham.
393 U.S. 268 (1969) ................
Turner v. Orr.
804 F.2d 1223 (11th Cir. 1986)
United States v. Colonr
961 F.2d 41 (2d Cir. 1992)
10
16, 37, 39
23, 31
7
40
vii
United States v. Dallas Countv.
739 F. 2d 1529 (11th Cir. 1 9 8 4 ) .................... 43
United States v. Kairvs.
782 F.2d 1374 (7th Cir.),
cert, denied. 476 U.S. 1153 (1986).................... 16
Walt Disney Productions v. Air Pirates.
581 F.2d 751 (9th Cir. 1978) cert, denied sub. nom.,
O'Neil v. Walt Disney Prod.. 439 U.S. 1132 (1979) . . 16
Wards Cove Packing Co. v. Atonio.
490 U.S. 1642 ( 1 9 8 9 ) ................................ 17
Weahkee v. Powell.
532 F. 2d 727 (10th Cir. 1976)........................ 37
Weaver v. Casa Gallardo. Inc..
922 F. 2d 1515 (11th Cir. 1 9 9 1 ) .................... 10
Weise v. Syracuse University.
522 F. 2d 397 (2d Cir. 1 9 7 5 ) ........................ 5
West Virginia Univ. Hospitals v. Casev.
Ill S. Ct. 1138, 113 L. Ed. 2d 68 (1991) . . . . 17
White v. Estelle
556 F. 2d 1366 (5th Cir. 1977)........................ 43
Womack v. Lvnn.
504 F. 2d 267 (D.C. Cir. 1974)........................ 37
STATUTES
1964 Civil Rights Act, 42 U.S.C. §2000e, et seg . . . passim
28 U.S.C. §1291 2
28 U.S.C. §1343(3) 2
42 U.S.C. §1981 . . . . . . . . . . . passim
1991 Civil Rights A c t ................................ 12, 13
viii
OTHER AUTHORITIES
136 Cong. Rec. ( 1 9 9 0 ) ................................ 18
137 Cong. Rec. ( 1 9 9 1 ) .................................... 17-30
H.R. Rep. 101-644, pt. 2, p. 71
(101st Cong., 2d sess. 1990) . . . . . . . 18
H.R. Rep. 101-644, pt. 1, p. 90
(101st Cong., 2d sess. 1990) . . . . . . . 18
EEOC Policy Guidance, Dec. 12, 1991 32
Black's Law Dictionary . . . . . . . . . 41
H.C. Black, Handbook on the Construction and
Interpretation of the Laws (1911) . . . . . . 41
C. Endlich, Commentary on Interpretation
of Statutes ( 1 8 8 8 ) ................................ 34
ix
I No. 92-7850
IN THE
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
GENEVA BUTTS,
Plaintiff-Appellant
v.
THE CITY OF NEW YORK, DEPARTMENT OF HOUSING
PRESERVATION AND DEVELOPMENT,
Defendant-Appellee.
On Appeal From the United States District Court
for the Southern District of New York
BRIEF FOR PLAINTIFF-APPELLANT
DECISION BELOW
This is an appeal from a decision of Hon. Louis J. Freeh, United States District
Judge. The decision below, dismissing the complaint, is reported at 1992 WL 170681. The
decision below relies on another decision by Judge Freeh, Kelbar v. Forest Datacom, 90 Civ.
3790 (U F ) (July 7, 1992), which is reported at 1992 WL 189247.
JURISDICTION
The complaint in this action states claims under Title VII of the 1964 Civil Rights
1
Act, 42 U.S.C. §2000e, et seq., and 42 U.S.C. §1981. The EEOC issued a right to sue letter
on May 7, 1991. (J.App. 105a-106a). The complaint was filed on August 5, 1991.
Jurisdiction over both civil rights claims is established by 28 U.S.C. §§1343(3) and 1343(4).
This is an appeal from a final judgment that disposes of all claims of all parties. The
judgment was entered on July 10, 1992. (J. App. 118a). The notice of appeal was filed on
August 4, 1992 (J.App. 135a). Jurisdiction over this appeal is established by 28 U.S.C.
§1291.
ISSUES FOR REVIEW
(1) Are plaintiffs post-1988 promotion claims reasonably related to her EEOC
charge?
(2) Are plaintiffs post-1988 claims regarding the terms and conditions of her
employment reasonably related to her EEOC charge?
(3) Does Patterson v. McLean Credit Union, 491 U.S. 164 (1989), require dismissal
of plaintiffs section 1981 promotion claims?
(4) Should section 101 of the 1991 Civil Rights Act be applied retroactively to
this case?
(5) Should Patterson v. McLean Credit Union, 491 U.S. 164 (1989), continue to
be applied retroactively in the wake of the 1991 Civil Rights Act?
STATEMENT OF THE CASE
On November 22, 1989, plaintiff Geneva Butts filed a charge with the Equal
Employment Opportunity Commission alleging a variety of discriminatory practices by her
employer, the Department of Housing Preservation and Development of the City of New
2
York. (J.App. 10a-12a, 126a). On May 7, 1991 the EEOC dismissed plaintiffs charges, and
issued a right-to-sue letter. (J. App. 105a-106a).
On August 5, 1991, plaintiff filed a pro se complaint in the United States District
Court for the Southern District of New York. On January 15, 1991, the defendant filed
a motion to dismiss. (J. App. 15a-16a). On March 16, 1992, plaintiff, having retained
counsel, filed a motion for leave to file an amended complaint. (J. App. 91a-103a). The
amended complaint expressly requested a jury trial. (J.App. 102a). On April 7, 1991, the
defendant submitted a supplemental memorandum in support of its motion to dismiss.
(J.App. 38a-57a). On July 7, 1991, the district court issued an Order and Opinion granting
the plaintiffs motion to file the amended complaint, and granting the defendant’s motion
to dismiss. (J.App. 123a-133a). Judgment was entered on July 10, 1992 (J.App. 118a).
Plaintiff filed a notice of appeal on August 5, 1992. (J.App. 135a).
Plaintiff was at the time of the EEOC charge, and remains today, an employee of
the New York City Department of Housing Preservation and Development ("HPD"). At
all relevant times she has been a supervisor at an HPD computer data center on 125th
Street in Manhattan. Plaintiff, who is a black woman, alleged that beginning in 1987 she
had been denied a series of promotions on account of her race. She further alleged that
beginning in 1987 she had been discriminated against in the terms and conditions of her
employment, particularly that she had been stripped of many of the responsibilities
appurtenant to her position, and that she had been criticized and given unfavorable ratings,
all on account of her race. (J. App. 95a-102a). Plaintiffs original and amended complaint
pled a cause of action under both Title VII and 42 U.S.C. §1981. (J. App. 6a, 95a).
3
The district court held that any acts of discrimination that had occurred in 1987 were
r
v not timely challenged in a 1989 Title VII charge nor in the section 1981 claims filed in
1991. The court below dismissed the post-1987 Title VII claims holding that they were not
related to the allegations in the EEOC charge. (J. App. 126a-130a). The court dismissed
the post-1987 section 1981 claims under Patterson v. McLean Credit Union, 491 U.S. 164
(1989). (J. App. 130a-31a). The district judge declined to apply retroactively section 101
of the 1991 Civil Rights Act, which overturned Patterson. (J. App. 131a-132a). Plaintiffs
complaint also asserted a claim for relief under state law, alleging intentional infliction of
emotional distress and intentional interference with employment. (J. App. 101a). The
district court dismissed these claims on the ground that plaintiff had failed to file a notice
of claim with the City. (J.App. 132a).
ARGUM ENT
I. THE DISTRICT COURT ERRED IN DISMISSING PLAINTIFF’S TITLE
VII CLAIMS___________________________________________________________
An individual claiming to be the victim of employment discrimination must file a
charge with the EEOC or relevant agency and obtain a right-to-sue letter from the
Commission prior to filing a Title VII suit. Although the scope of the EEOC charge to
some degree limits what may be litigated in the subsequent lawsuit, the claims raised in the
litigation need only be "reasonably related" to the original charge. Owens v. New York City
Housing Authority, 934 F.2d 405, 410 (9th Cir. 1991 )\ Almendral v. New York State Office of
Mental Health, 743 F.2d at 967; Goodman v. Heublein, Inc., 645 F.2d 127, 131 (2d Cir.
1981); Kirkland v. Buffalo Board of Education, 622 F.2d 1066, 1068 (2d Cir. 1980). Thus,
the Title VII action is not limited "to the words of the charge". Smith v. American President
4
which occurred after the date of the initial charge so long as those new violations are
reasonably related to the EEOC charge. Almendral v. New York State Office o f Mental
Health, 743 F.2d at 967.
T h i s c o u r t e x p l a i n e d in W e i s e v. S y r a c u s e U n i v e r s i t y :
To force an employee to return to the state agency every time [s]he claims
a new instance of discrimination in order to have the EEOC and the courts
consider the subsequent incident along with the original ones would erect a
needless procedural barrier.
522 F.2d 397, 412 (2d Cir. 1975). "[T]he rigid insistence on meticulous observance of
technicalities unrelated to any substantive purpose is inappropriate." Id.
The application in this Circuit of the reasonable relationship standard is illustrated
by Almendral v. New York State Office of Mental Health, 743 F.2d 963 (2d Cir. 1984), and
Miller v. International Tel & Tel Corp., 755 F.2d 20 (2d Cir. 1985). In Almendral the
plaintiff filed a charge with EEOC alleging that he had been unlawfully denied a promotion
in 1978. Subsequently the plaintiff was denied promotions in 1979, 1980, and 1981. This
court held that all of these promotion claims were reasonably related to the original EEOC
charge. 743 F.2d at 966-67. On the other hand, in Miller the EEOC charge alleged only
unlawful discrimination resulting in the dismissal of the plaintiff; this court held that
subsequent allegations the defendant had unlawfully refused to rehire the plaintiff were not
reasonably related to the initial charge. 755 F.2d at 25.
Lines, Ltd., 571 F.2d 102, 107 n.10 (2d Cir. 1978). The litigation may encompass violations
r~
5
(1) Plaintiffs Post-1988 Promotion Claims Are Reasonably Related to Her
EEOC Charge______________________________________________________
The amended complaint in this action alleged that plaintiff had been unlawfully
denied six distinct promotions:
Date Promotion
January 1987 Director of Systems and Project Management.
1987 A ssistant C om m issioner of
Management.
Systems and Project
May 1987 A s s i s t a n t C o m m i s s i o n e r
Information Systems.
fo r M a n a g e m e n t
1989 Director of Systems Architecture.
May 1990 Deputy Commissioner of the
and Administration.
Office of Management
June 1991 Deputy Commissioner of the
and Administration.
Office of Management
(J.App. 99a-100a). Plaintiff filed her Title VII charge with EEOC on November 22, 1989.
The district court noted that the applicable limitations period for a Title charge was 300
days. (J.App. 125a). Thus only unlawful discrimination occurring in or after January 1989
would be within the 300 day limitation period.1 Although the 1987 promotions occurred
prior to January 1989, the last three promotions allegedly denied on the basis of race all
fall within the limitations period.
1 If the court were to find that unlawful discrimination had occurred after January,
1989, it could award back pay for two years prior to the filing of the charge in November,
1989, i.e. to November 22, 1987, if a continuing violation exists. Whether such a continuing
violation occurred in this case is an issue that need not be reached until and unless a jury
on remand finds that there was post-1988 discrimination.
6
The district court held that these post-1988 promotion claims "do not appear to be
related to the allegations which were included in the 1989 EEOC charge." (J.App. 127a).
This holding was manifestly incorrect.
The Title VII charge is replete with allegations of discrimination in promotions:
I have been denied promotional opportunities and consideration based on my
race....
* * *
I was discouraged from applying for a higher position of authority....
* * *
I was denied . . . promotional advancement and upward career mobility. I
have made several requests for advancement that were thwarted....
I feel allegations criticizing my work performance were made to justify my
being passed over for promotions.
The treatment I have received after 17 years of faithful employment is
respondent’s tactic designed to justify not promoting me, an African-
American, into a higher position of authority....
(J.App. 10a-13a). (Emphasis added). Manifestly, the promotion claims in the amended
complaint were reasonably related to the EEOC charge. See, Almendral v. New York State
Office o f Mental Health, 743 F.2d 963, 967 (2d Cir. 1984); Rush v. M cDonald’s, 966 F.2d
1104, 1110-11 (7th Cir. 1992); Turner v. On, 804 F.2d 1223, 1226 (11th Cir. 1986); Gamble
v. Birmingham So. R.R. Co. 514 F.2d 678, 689 (5th Cir. 1975); Sklenar v. Central Bd. o f Ed.,
497 F. Supp. 1154, 1159 n.9 (E.D. Mich. 1980).
7
(2) Plaintiffs Post-1988 Claims Regarding the Terms and Conditions of
Employment Are Reasonably Related to Her EEOC Charge__________
The amended complaint also alleged that defendant had, within the 300-day
limitation period, discriminated on the job against plaintiff in a variety of ways. The district
court held that these allegations too were not "related to the allegations" of the EEOC
charge. (J.App. 127a). That holding as well was manifestly incorrect.
The relationship between the complaint and the EEOC charge is evident from their
plain language. Regarding the defendant’s general practice, the complaint alleges
From the period of May, 1987, to the present, the defendant systematically
discriminated against the plaintiff, in a deliberate and continuous fashion, by
depriving her of equal terms and conditions of employment . . . due to her
race and color.
(J.App. 97a) (emphasis added). The EEOC charge asserted:
I have been denied equal terms and conditions of employment as that
afforded to my Caucasian . . . counterparts.
(J.App. 10a). Both the complaint and the EEO charge alleged plaintiff had been cut off
from needed access to her supervisors.
From May 1987 to the present, the plaintiff has been wrongfully denied
access to her supervisors depriving her of the opportunity to effectively
perform her job functions.
(Amended complaint J.App. 97a).
Fred DeJohn to whom I reported directly, limited contact with me to fewer
than 10 telephone conversations....
Acting Commissioner Sosa ... held department reorganization meetings
without informing me of the meetings....
I have been excluded from management-level discussions....
(EEOC charge, J.App. lla-12a).
8
The EEOC charge as well as the amended complaint alleged that plaintiff had on account
of race been stripped of responsibilities and authority she held prior to 1987. Compare
J.App. 10a-12a with J.App. 127a.
II. THE DISTRICT COURT ERRED IN HOLDING PLAINTIFFS PROMOTION
CLAIMS ARE BARRED BY PATTERSON v. McLEAN CREDIT UNION
As the district court recognized, the statute of limitations applicable to plaintiffs
section 1981 claims is three years. (J.App. 130a). Thus, discrimination occurring in or after
August 1988 is within the limitations period. Three of the six promotions in dispute
occurred after 1988, and are thus timely.2
The district court summarily dismissed the section 1981 claims under Patterson v.
McLean Credit Union, 491 U.S. 164 (1969):
The City . . . argues that Butts’ remaining allegations under §1981 must be
dismissed for failure to state a claim as a matter of law. In making this
argument, the City relies on the Supreme Court’s decision in Patterson ...,
which held that an employee has no claim for employment discrimination
under §1981 unless the acts complained of related to the making or
enforcement of a contract. 491 U.S. at 176-77.... Butts cannot rely on the
1991 [Civil Rights Act] here, and her §1981 claims must be dismissed.
(J.App. 131a-32a).
The district judge apparently believed that under Patterson discrimination in
promotions is never actionable. In fact, however, Patterson holds the discriminatory denial
of a promotion is unlawful under section 1981 "where the promotion rises to the level of
an opportunity for a new and distinct relation between the employee and the employer."
2 Plaintiff acknowledges that her non-promotion claims are not actionable under
Patterson.
9
491 U.S. at 185. Plaintiff expressly asserted below that the promotions at issue met this
test. (J.App. 78a-80a). Defendant never argued that the promotion denials, if
discriminatory, did not involve a new and distinct relationship. Nor did defendant suggest
that the new and distinct relationship standard could be applied in the absence of a factual
record regarding the promotions at issue. Rather, following the filing of the amended
complaint, the defendant relied primarily on the August 1988 statute of limitations. (J.App.
30a-31a, 50a).
The issue of whether the promotions at issue in this case involved a new and distinct
relationship cannot be resolved by a motion to dismiss, because the application of this
aspect of Patterson requires a factual record revealing the circumstances of the positions
at issue. Other circuits faced with this issue have in this situation uniformly directed a
remand for development of a record regarding those facts. Taylor v. Western and Southern
Life Ins. Co., 966 F.2d 1188, 1201 (7th Cir. 1992); Weaver v. Casa Gallardo, Inc., 922 F.2d
1515, 1520 (11th Cir. 1991); Rodriguez v. General Motors Corp., 904 F.2d 531, 534 (9th Cir.
1990). The instant case should be remanded for a determination of the relevant facts.
The touchstone of the "new and distinct relation standard is whether the promotion
at issue was "a fulfillment of expectations implicit in the original employment contract."
Johnson v. Uncle Ben’s, Inc., 968 F.2d 1363, 1371 (5th Cir. 1992). A promotion that merely
changes an employee’s status in a way contemplated when the contract was first made is
not a new and distinct relationship, but simply a development which the parties foresaw
would routinely occur within the context of the pre-existing contractual relation. Thus
where an employer had an established program of rotating employees through several
10
divisions, each such job change would not create a new employment relation. McKnight
v. General Motors Corp., 908 F.2d 104, 110 (7th Cir. 1990).
The appellate courts have recognized two types of circumstances in which a
promotion will ordinarily involve a new and distinct relation. The first is where the
promotion at issue involves both an increase in salary and a significant qualitative change
in duties. See, e.g., Harrison v. Associates Corp. o f North America, 917 F.2d 195, 198 (5th
Cir. 1990) ("a raise . . . accompanied by ,. . . [a] significant change in duties and
responsibilities"). "Determining whether a promotion would create a ’new and distinct
relation’ requires a fact-specific examination into employee’s duties, pay, and responsibility."
Johnson v. Uncle Ben’s Inc., 965 F.2d 1363, 1370 (5th Cir. 1992).
Second, the appellate courts have recognized that a new and distinct relationship
exists where the position at issue is one which might be filled by an outsider hired into the
job. Judge P osn er emphas i zed in Malhotra v. Cot ter & Co.
the anomaly created by a rule that a stranger to the firm could sue under
section 1981 if his application for a position were turned down on racial
grounds but a person already employed by the firm could not sue even
though his application for the identical position was turned down on the
identical grounds.
885 F.2d 1305, 1311 (7th Cir. 1989). See also McKnight v. General Motors Corp., 908 F.2d
104, 109 (7th Cir. 1990); Mozee v. American Commercial Marine Service Co., 940 F.2d 1036,
1055 (7th Cir. 1991).
In some cases the relevant facts may be undisputed. This, however, is not such a
case. The nature of the promotions is not disclosed by the record, but must await discovery
and trial. Whether a new and distinct relation is presented, moreover, depends not only
11
on the nature of the position to which promotion is sought, but also on the circumstances
of the position already held by the applicant. In the instant case plaintiff alleges that the
position from which she sought promotion was one which had been shorn of most
administrative responsibilities, cut-off from needed access to supervisors, and subject to
unwarranted racially motivated criticism. If a jury were to find that these were indeed
plaintiffs circumstances in 1989-91, a promotion of plaintiff to a genuine supervisory
position free of discriminatory terms and conditions would have represented a sea change
in her relation with the defendant employer.
III. SECTION 101 OF THE 1991 CIVIL RIGHTS ACT SHOULD BE APPLIED
RETROACTIVELY TO THIS CASE______________________________________
Although section 1981 applies to promotion discrimination after August 1988, and
Title VII applies to discrimination after January 1989 in both promotions and the terms
and conditions of employment, it is still necessary to determine whether section 101 of the
1991 Civil Rights Act, which overturns the decision in Patterson, should be applied
retroactively in this case. First, although Title VII applies to the terms and conditions
claims, it provides no monetary relief other than back pay, which is irrelevant to those
claims; the amended section 1981, on the other hand, authorizes an award of damages.3 *
Second, although section 1981 applies to the promotion claims, the pre-Civil Rights Act
section 1981 requires plaintiff to prove not only that she was denied a promotion on
account of race, but also that the promotion involved a "new and distinct relation." If
3 As amended by section 102 of the 1991 Civil Rights Act, Title VII now authorizes
damage awards as well. Although we urge section 102 is also retroactive, there is no need
to reach that issue if section 101 is held retroactive, since the remedy available under
section 101 is broader than that which would be provided here by section 102.
12
section 101 of the 1991 Act applies, proof of a new and distinct relation would be
unnecessary.
(1) The Plain Language of the Act Applies to Pre-Existing Claims
(a) The Language o f Sections 402(a), 402(b), and 109(c)
The Act contains three specific provisions governing the applicability of its various
sections to pre-existing claims. First, section 109, prohibiting discrimination against certain
Americans working abroad, is expressly limited to acts of discrimination occurring after
November 21, 1991:4
(c) Application of Amendments. The amendments made by this
section shall not apply with respect to conduct occurring before
the date of the enactment of this Act.
Second, section 402(b) exempts from all provisions of the Act "certain ... cases" involving
claims that already existed prior to November 21, 1991:5
(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.
Third, the applicability of the Act to pre-existing claims not governed by section 109(c) or
402(b) is controlled by section 402(a):
(a) Except as otherwise specifically provided, this Act and the
amendments made by this Act shall take effect upon
enactment.
4 This provision overrules EEOC v. Arabian American Oil Co., I l l S.Ct. 1227, 112
L.Ed.2d 274 (1991).
5 In fact Congress understood there to be only one such case, the continuing litigation
against the Wards Cove Packing Co.
13
The interpretation of section 402(a) is the central question at issue.
It is clear for several reasons that section 402(a) cannot mean, as some defendants
now contend, that no provisions of the Act apply to any pre-existing claim. The specific
language of sections 109(c), 402(b) and 402(a) embodies a careful and deliberate scheme
in which Congress dealt expressly with the issue of which pre-existing claims should and
should not be covered by the Act. Congress clearly decided there were certain pre-existing
claims to which the Act should not be applied — pre-existing claims involving allegedly
discriminatory conduct occurring outside the United States, and certain very old instances
of alleged disparate impact. Equally clearly, however, Congress made a deliberate decision
not to exclude from coverage by the Act those pre-existing claims that were not exempted
by sections 109(c) or 402(b), such as intentionally discriminatory conduct occurring within
the United States, or disparate impact cases filed after March 1, 1975. This carefully
crafted and precise scheme would be violated if the courts were now to declare the Act
inapplicable to pre-existing disparate treatment claims that arose within the United States,
or to disparate impact claims that were filed after 1975.
The conclusion that section 402(a) contemplates application of the Act to pre
existing claims not exempted by sections 109(c) and 402(b) is dictated by several well
established cannons of con- struction. First,
[wjhere Congress includes particular language in one section of a statute but
omits it in another section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate inclusion or
exclusion.
Russello v. United States, 464 U.S. 16, 23 (1983) (quoting United States v. Wong Kim Bo, 472
F.2d 720, 722 (5th Cir. 1982)). The decision to exempt from section 109, and from that
14
section alone, "conduct occurring before the date of enactment", can only be read as a
decision not to place any such limitations on the other provisions of the Act. Second, if
the general language of section 402(a) were interpreted to preclude application of the
statute to any existing claim, sections 109(c) and 402(b) would be utterly redundant.
As our cases have noted in the past, we are hesitant to adopt an
interpretation of a congressional enactment which renders superfluous
another portion of the same law.
Mackey v. Lanier Collections Agency & Serv., Inc., 486 U.S. 825, 837 (1988); see also Colautti
v. Franklin, 439 U.S. 379, 392 (1979) (reading a statute to render a section "redundant or
largely superfluous" violates "the elementary cannon of construction that a statute should
be interpreted so as not to render one part inoperative"). Several decisions applying the
Civil Rights Act to pre-existing claims have relied on the express exclusion of such claims
in sections 109 and 402(b).6
The courts of appeals have repeatedly held that where Congress has expressly limited
only certain parts of a law to post-Act claims, Congress must have intended that the
balance of the statute would apply to pre-existing claims. In re Amatex Corp., 755 F.2d
1034, 1037 (3d Cir. 1985) ("Since none of these statutory exceptions are applicable here,
we conclude that the 1984 Act controls" the pre-existing claim); In re Salem Mortg. Co., 783
F.2d 626, 631 n.14 (6th Cir. 1986) (express limitation as to only certain subsections "implies
that, except for those subsections specifically excepted ... the provisions ... apply to pending
6 Mojica v. Gannett Co., 57 FEP Cas. 538, 539 (N.D. 111. 1991); Stender v. Lucky Stores,
Inc., 1992 U.S. Dist. LEXIS 274 (N.D. Cal. 1992) (Memorandum and Order, pp. 3-4);
Graham v. Bodine Electric Co., 1992 U.S. Dist. LEXIS 679 (N.D. 111. 1992) (Memorandum
Opinion and Order, pp. 3, l ) \Longv. Carr, (N.D. Ala., No. L88-CV-263-RCF), Order, Jan.
31, 1992, p. 5 n. 4.
15
cases"); United States v. Kairys, 782 R2d 1374, 1382 and n.13 (7th Cir.), cert, denied, 476
U.S. 1153 (1986); Matter o f Busick, 831 F.2d 745, 748 (7th Cir. 1987); Carlton v. BAWW,
Inc., 751 F.2d 781, 787 n.6 (5th Cir. 1985). Where Congress intended that an entire statute
— rather than just specific sections — be inapplicable to existing claims, it has not hesitated
to expressly so provide. See, e.g., Wall Disney Productions v. Air Pirates, 581 F.2d 751, 754
(9th Cir. 1978) cert, denied sub. nom. O ’Neil v. Walt Disney Prod., 439 U.S. 1132 (1979).
The provisions of sections 109(c) and 402(b) show that Congress knew full well what
language to use if it wished to exempt a category of pre-existing claims from the Act, and
that Congress deliberately utilized such explicit language where, and only where, it wanted
to create an exemption.
Section 402(a) provides that "the amendments made by this Act shall take effect upon
enactment." (Emphasis added).7 Almost all of "the amendments made by this Act" are
entirely remedial. They do not render illegal previously lawful practices, but provide (or
restore) certain procedures, standards and remedies which the courts are to use in resolving
and redressing claims. The amendments incorporating these remedial provisions can "take
effect upon enactment" in a meaningful way only if they apply to pre-existing claims. On
7 Matter of Reynolds, 726 F.2d 1420. 1423 (9th Cir. 1984):
While not dispositive on the issue before us, the fact that
Congress expressed its intention that the statute take effect
upon enactment is some indication that it believed that
application of its provisions was urgent. We certainly cannot
construe this expression of congressional concern as a direction
that the law should not be applied to pending matters.
(Emphasis in original). See Thompson v. Sawyer, 678 F.2d 257, 280 (D.C. Cir. 1982)
(application to pre-existing claims supported by fact Congress did not defer effective date).
16
the date of enactment there were, of course, no cases to remedy involving post-Act conduct.
Actual relief under the remedial amendments, if limited to post-Act conduct, would not as
a practical matter be awarded for many years after 1991. In the eight Supreme Court cases
overturned by the Act, as Congress was well aware,8 the employment discrimination claim
at issue was nine years old on average by the time the litigation reached the Court;9 * * in four
of the eight cases the Court remanded the claim for even further proceedings. At that rate
it would be many years before most amendments made by the Act, if limited to post-Act
conduct, could as a practical matter actually "take effect." If section 402(a) were construed
to exempt all pre-existing claims, the law generally in "effect" in most cases until the mid-
1990’s would be not the Civil Rights Act of 1991, but the very Supreme Court decisions
that Congress overwhelmingly voted to overturn.
(b) Congressional Rejection of Amendments Excluding Coverage o f Existing Claims
The language of sections 109(c), 402(b), and 402(a), specifically exempting some but
not all pre-existing claims from application by the Act, in fact represents a considered and
deliberate rejection of express proposals that all pre-existing claims be exempt. During the
8 137 Cong. Rec. H 3885 (daily ed. June 4, 1991) (Rep. Gunderson).
9 Patterson v. McLean Credit Union, 491 U.S. 164 (1989) (plaintiff harassed 1972-1982,
fired 1982); Wards Cove Packing Co. v. Atonio, 490 U.S. 1642 (1989) (filed in .1974); Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989) (plaintiff denied partnership in 1982); EEOC
v. Arabian American Oil Co., I l l S.Ct. 1227, 113 L.Ed.2d 274 (1991) (plaintiff dismissed in
1974); Martin v. Wilks, 490 U.S. 755 (1989) (original suit filed in 1974; disputed consent
decree entered in 1981); Lorance v. AT&T Technologies, Inc, 490 U.S. 900 (1989) (seniority
system adopted in 1979; plaintiff laid off in 1982); West Virginia Univ. Hospitals v. Casey,
111 S.Ct. 1138, 113 L.Ed.2d 68 (1991) (disputed practice occurred in January 1986); Library
of Congress v. Shaw, 478 U.S. 310 (1986) (Title VII complaints filed in 1976 and 1977).
17
congressional consideration of the Civil Rights Act a series of proposals — all unsuccessful -
- were made to add specific language that would have limited the application of the
legislation to acts of discrimination occurring after its effective date. The fact that the plain
language of the bill does not include such a limitation is thus of considerable importance.
The rejected proposals included the following:
(1) In 1990 an amendment to the bill expressly limiting its application to conduct
occurring after the effective date of the legislation was rejected by the House Judiciary
Committee.10
(2) Another such amendment was proposed but then withdrawn during the 1990
deliberations of the House Committee on Education and Labor.11
(3) When the legislation reached the floor of the House in August, 1990, the
Administration and conservative opponents offered an alternative proposal known as the
Michel-LaFalce substitute. The Michel-LaFalce substitute contained a specific provision
that would have exempted all pre-existing claims from coverage:
The Amendments made by this Act shall not apply with respect to claims
arising before the date of enactment of this Act.12
10 H.R. Rep. 101-644, pt. 2, p. 71 (101st Cong., 2d sess. 1990); 136 Cong. Rec. H 6786
(Rep. Moorhead) (daily ed. Aug. 2, 1990) ("[wjhen the Judiciary Committee considered this
legislation, I offered an amendment that would have made all the changes in current law
... prospective only .... My amendment lost....")
11 H.R. Rep. 101-644. pt. 1, p. 90 (101st Cong., 2d sess. 1990); ("[T]he Committee
considered an amendment to ... preclude application of the bill to any conduct occurring
prior to the date of enactment .... [Tjhe amendment was subsequently withdrawn").
12 137 Cong. Rec. H 6747 (daily ed. Aug. 3, 1990).
18
The Michel-LaFalce substitute, however, was rejected by a vote of 238 to 188.13
(4) In early 1991, the Administration proposed yet another bill; this legislation, like
Michel-LaFalce, contained general language that would have expressly exempted all pre
existing claims from coverage by the legislation:
The amendments made by this Act shall not apply to any claim arising before
the effective date of this act.14
When the Civil Rights Act was on the floor of the House in June of 1991, Representative
Michel proposed this language as part of a substitute,15 but it too was rejected, by a vote
of 266 to 162.16
(5) This same restrictive language was included in a bill introduced in the Senate
in 1991 by Senator Dole, but that bill garnered only eight cosponsors.17
(6) A proposal to bar coverage of all pre-existing claims was rejected in the
climactic October 1991 negotiations. The language now contained in section 402(a) of the
Civil Rights Act was utilized in section 22 of the S.1745, proposed by Senator Danforth
in the summer of 1991. Senator Murkowski objected to then-section 22 of Danforth’s bill
precisely because it would apply the legislation to all pending cases. Senator Murkowski
explained:
During Senate consideration of S.1745, the Civil Rights Act of 1971, I intend
13 Id. at H 6768.
14 137 Cong. Rec. S 3023 § 14 (daily ed. March 12, 1991).
15 137 Cong. Rec. H 3898 (daily ed. June 4, 1991) (§ 15).
16 137 Cong. Rec. H 3908 (daily ed. June 4, 1991.
17 137 Cong. Rec. S3021 (daily ed. March 12, 1991).
19
to offer an amendment that will inject a much needed element of fairness
into the bill.
As presently drafted, Section 22 of S.1745 would apply retroactively
to all cases pending on the date of enactment regardless of the age of the
case. My amendment will limit the retroactive application of S.1745 with
regard to disparate impact cases for which a complaint was filed before
March 1, 1975 and for which an initial decision was rendered after October
30, 1983.
To the best of my knowledge, Wards Cove Packing Co. v. Atonio is the
only case that falls within this classification .... My amendment is very limited
in scope....18
Murkowski’s letter expressly offered a proposal, ultimately adopted in section 402(b), to
exempt the Wards Cove Company from the general applicability of the Act to pre-existing
claims.
The final language of the Civil Rights Act was negotiated during the week of
October 21, 1991. Once again the Administration and conservative Republicans pressed
for inclusion in the bill of the blanket exemption for pending cases that had been contained
in the rejected Michel-LaFalce and Michel substitutes. Supporters of the bill rejected this
suggestion, but agreed as a compromise to accept the Murkowski proposal. Senator
Kennedy, one of the key participants, described the negotiations:
Many Senate Republicans and the administration favored including
language stating that the bill applied to no pending cases. Instead, the
Senate accepted Senator Murkowski’s amendment, which only keeps the bill
from applying to the parties in the Wards Cove case itself....
Many of the provisions of the Civil Rights Act of 1991 are intended
to correct erroneous Supreme Court decisions and to restore the law to
where it was prior to those decisions. In my view, these restorations apply
18 Letter to Senate colleagues, September 15, 1991, reprinted in 137 Cong. Rec. S
15954 (daily ed. Nov. 5, 1991).
20
to pending cases, which is why the supporters of the Murkowski amendment
sought specific language to prevent the restorations from applying to that
particular case....
All of us, on both sides of the aisle, are well aware of the numerous
tradeoffs involved in enacting this complex but extremely important
compromise.19
Congress was well aware when it approved the compromise bill that the Administration had
proposed, and Kennedy had rejected, a per se exclusion of all pending cases from coverage
by the Act; that aspect of the negotiations was described in a Washington Post story printed
the day of the vote.20
In sum, express proposals to exempt all pending cases from coverage by the Act
were made repeatedly, and were rejected on four separate occasions — once in committee,
twice on the floor of the House and a last time during the climactic Senate negotiations.
It would be singularly inappropriate for the courts to read into the Act the precise
limitation which Congress repeatedly rejected.
19 137 Cong. Rec. S 15964 (daily ed. November 5, 1991); see also id. at S 15953 (Sen.
Murkowski) (the amendment adding section 402(b) "was adopted on compromise
negotiation on Senate bill 1745. The White .House, Senator Danforth, and the managers
of the bill, Senator Hatch and Senator Kennedy, all agreed to the amendment").
20 Washington Post, Oct. 31, 1991:
Sen. Edward M. Kennedy (D. Mass.), the principal Democratic
architect of the bill, fought the [Wards Cove exemption] provision last year.
But this year he accepted the provision in an effort to stave off an even
broader exception.
The administration tried to prevent all victims of discrimination with
cases currently pending in the courts from obtaining the benefit of the bill’,
said Kennedy’s spokesman, Paul Donovan. ’Senator Kennedy was able to
convince them to drop this broad provision. Unfortunately, he was not able
to convince them to drop it for the Wards Cove case itself.
21
Congress, before taking final action, considered the question as to what
exceptions, if any, should be made.... The court cannot add an exception
based on equitable grounds when Congress forbore to make such an
exception.
Louisville & Nashville R R Co. v. Mottley, 219 U.S. 467, 478-79 (1911); Bradley v. Richmond
School Board, 416 U.S. 696, 716 n.23 (1974) ("we are reluctant to read into the statute the
very ... limitation that Congress eliminated"). In several instances the courts of appeals,
applying new statute to a pre-existing claim, have emphasized that Congress had defeated
an amendment to prohibit such applications. See, e.g., Bond v. Stanton, 555 F.2d 172, 173-
74 (7th Cir. 1977), cert, denied, 438 U.S. 916 (1978); Gates v. Collier, 559 F.2d 241, 243 n.9
(5th Cir. 1977) reh’g denied 588 F.2d 828 (5th Cir. 1979).
(2) The Legislative Debates Indicate That the Act Applies to Pre-Existing Claim
The final language of the Civil Rights Act was agreed upon in negotiations on
October 24, 1991. During the debates which followed members of the House and Senate
made at times contradictory statements about the meaning of the compromise language,
including differing statements regarding whether the Act applied to pre-existing claims.
Despite these differences,two things are clear. First, the overwhelming majority of
members who actually spoke about this issue on the floor of the House or Senate agreed
that the Act, except as specifically provided, applied to pending cases. Second, the
Administration and its supporters adamantly insisted as "inclusion of section 402(b), a
provision which would have been quite superfluous had they actually believed the entire
statute was inapplicable to pre-existing claims.
(a) Kennedy, Edwards and Fish
The original sponsors and leading proponents of the bill were Senator Kennedy in
22
the Senate, and representatives Edwards and Fish in the House. Kennedy was the principal
Democratic sponsor of the final compromise language.21 Both Kennedy and Edwards,
discussing the matter explicitly, insisted that the Act applied to pending cases unless that
application would be manifestly unjust, and Representative Fish expressly endorsed
Edwards’ statement.
Senator Kennedy was the first member of Congress to address this matter on the
floor after the October 24 compromise was reached. Kennedy argued that application of
the Act to the pre-existing claims was consistent with Bradley, since the Act was remedial
and restorative:
Ordinarily, courts in such cases apply newly enacted procedures and remedies
to pending cases. That was the Supreme Court’s holding in Bradley v.
Richmond School Bd., 416 U.S. 696 (1974). And where a new rule is merely
a restoration of a prior rule that had been changed by the court, the newly
restored rule is often applied.... It was with that understanding that I agreed
to be the principal Democratic sponsor of the Danforth-Kennedy
substitute.22
In a later speech Kennedy again described to the Senate the decision in Bradley, as well as
the holding in Thorpe:
Courts frequently apply newly enacted procedures and remedies to pending
cases. That was the Supreme Court holding in Bradley v. Richmond School
Bd., 416 U.S. 696 (1974) and Thorpe v. Housing Authority, 393 U.S. 268
(1969), in which the Court stated: "The general rule ... is that an appellate
court must apply the law in effect at the time it renders its decision".23
No member of either house ever questioned the accuracy of Kennedy’s description of
21 137 Cong. Rec. S 15485 (daily ed. Oct. 30, 1991).
22 137 Cong. Rec. S 15485 (daily ed. Oct. 30, 1991) (Sen. Kennedy).
23 137 Cong. Rec. S 15963 (daily ed. Nov. 5, 1991) (Sen. Kennedy).
23
Bradley and Thorpe.
Representative Edwards also cited Bradley as establishing "[t]he general rule",
observing that "the great weight of the caselaw supports the application of this bill to
pending cases."24 In addition to offering a detailed analysis of the legislation under the
Bradley standard,25 Edwards argued at length that a failure to apply the Act to existing
claims would frustrate the substantive purposes of the Act. First, he pointed out, limiting
the Act to future cases would mean that the very Supreme Court decisions overwhelmingly
repudiated by Congress would continue to be enforced for many years; Second, Edwards
urged that a failure to apply the Act to existing claims would give defendants "an
undeserving windfall from the intervening Supreme Court errors."26
No member of the Congress ever argued that it would be desirable to apply the repudiated
Supreme Court cases for years to come, or that it would be unfair to apply to defendants
legal prohibitions they well knew existed at the time of their actions.
Representative Fish, the chief House Republican sponsor of the bill, expressly
endorsed Edwards’ analysis:
[T]he gentleman from California [Mr. Edwards] inserted a legislative history
into this debate. I would like to associate myself with two particular elements
of that legislative history.... [Wjith respect to the effective date in section
402, I think it should be clear that the bill applies to pending cases.27
The analysis of the controlling legal principles advanced by Kennedy and Edwards
24 137 Cong. Rec. H 9531 (daily ed. Nov. 7, 1991) (Rep. Edwards).
25 Id.
26 Id. at H 9530 (Rep. Edwards).
27 Id. at H 9549 (Rep. Fish).
24
was the same as had been propounded in 1990 by the committee reports. The 1990 House
Judiciary Report observed:
As a general rule, the law at the time of the decision should apply to a case.
Bradley v. Richmond School Board, 416 U.S. 696, 711 (1974). But the court
should not apply a legal rule retroactively if "doing so would result in
manifest injustice or legislative history to the contrary." Id. at 711.28
The Minority Views appended to the 1990 committee reports did not question this
characterization of Bradley as the relevant legal standard. Rather, the minority, in language
entirely consistent with the Bradley standard, argued that the legislation should not interfere
with "vested rights" already finally adjudicated,29 and that it would be "unfair" to apply to
a pending case a legal standard different from that which existed when the conduct at issue
occurred.30
(b) The Dispute Regarding Section 402(b)
The single most controversial provision of the October 24 compromise was section
402(b). It was understood that section 402(b) in fact applied only to a single lawsuit, the
still pending case against the Wards Cove Packing Co.31 A firestorm of congressional
28 H.R. Rep. 101-644, pt.2, p. 45 (101st Cong. 2d sess.) (1990); see also S. Rep. 101-
315, p. 59 (101st Cong., 2d sess.) (1990) (citing Bradley).
29 H.R. Rep. 101-644, pt. 1, p. 145 (minority views), pt. 2, p. 71 (minority views) (101st
Cong. 2d sess.)(1990).
30 H.R. Rep. 101-644, pt. 1, p. 145 (minority views) ("Employers should not have past
employment practices judged by standards which were arguably first created in 1990.... [I]t
is unfair for Congress to change the rules in the middle of the game...."), pt. 2 p. 195 ("it
is simply unfair and constitutionally troublesome to legislate on the assumption that
employers should have anticipated these changes and adjusted their behavior accordingly")
(101st Cong. 2d sess.)(1991). See also id. at pt. 2, p. 145 n. 32 (distinguishing "curative"
legislation).
31 See 137 Cong. Rec. S 15953-54 (Sen. Murkowski) (daily ed. Nov. 5, 1991).
25
reaction was precipitated by an October 31, 1991, Washington Post story describing how the
Wards Cove Company had paid $175,000 to a lobbyist to obtain the exemption in section
402(b).32
When the Civil Rights Act first passed the Senate on October 30, 1991, section
402(b) was inadvertently omitted. Republican conservatives regarded the addition of this
subsection as so important that Senator Dole took the extraordinary step of insisting that
the bill be returned to the Senate floor for further action and a separate vote to add this
provision. When the bill thus came before the Senate a second time, Senate opponents of
section 402(b) argued it was indefensible to exempt the Wards Cove case from legal
standards applicable to all other pending and future cases. Senator Adams denounced the
proposal to provide
a special exemption from the Civil Rights Act of 1991 for Wards Cove
Packing Co.... I found at the end of those negotiations ... a special section
put in that took out the plaintiffs in the Wards Cove case, an incredible piece
of special interest legislation.... Only one case ... involving one company --
Wards Cove Packing Co... was being taken out.... [T]his case should be
settled ... under the standards enunciated in the Griggs case. What this
amendment would do would prevent that.... [A]ll of the various pending
cases I think should be tried under Griggs. That is the whole purpose of this
legislation.33
Senator Akaka stressed that section 402(b) would take from the Wards Cove employees
rights and remedies available to all other plaintiffs:
[I]f the Senate passes [section 402(b)], we effectively deny these workers the
right to legal redress that this bill now extends to all other victims of racial
discrimination in employment. It is an extremely cruel irony that the
32 137 Cong. Rec. H9555 (daily ed. Nov. 7, 1991) (quoting story).
33 137 Cong. Rec. H 15950, 15965 (daily ed. Nov. 5, 1991).
26
plaintiffs in Wards Cove versus Atonio, the very case which we seek to
overturn in this Act, would be the only American workers deprived of having
the merits of their claim considered under the Griggs standard.34
Senator Simon denounced section 402(b) as "an exemption for one company."35 A total
of 22 Senators voted against adding section 402(b) to the bill.36
The compromise bill brought up on the floor of the House on November 7
contained section 402(b). At the beginning of the House debates, the proposed procedural
"rule" governing consideration of the bill was bitterly opposed by Representatives outraged
by the exemption, since the rule did not permit a separate vote on section 402(b). The
Speaker of the House, who virtually never addresses that body,37 was forced to take to the
floor to stem a revolt over section 402(b), and to promise to work for separate legislation
to repeal that offending section.38 In the House 93 members voted against the procedural
rule that precluded amendments to delete section 402(b).39
In the House no fewer than 33 Representatives went on record in characterizing
section 402(b) as exempting the Wards Cove Packing Company from the legal standards
34 137 Cong. Rec. S 15950 (daily ed. Nov. 5, 1991).
35 137 Cong. Rec. S 15967 (daily ed. Nov. 5, 1991)
36 137 Cong. Rec. S 15968 (daily ed. Nov. 5, 1991).
37 137 Cong. Rec. H 9515 (daily ed. Nov. 7, 1991) (Rep. Foley) ("[I]t is not often that
I take the well. In the tradition of those who have held the office of Speaker, I reserve that
to exceptional times and circumstances. I think this is such a time.")
38 Id. ("I would ... say to the Members on this side of the aisle who are concerned with
the Wards Cove case in particular that I will ... exercise every effort on my part to see that
this matter is corrected.")
39 137 Cong. Rec. H 9516 (daily ed. Nov. 7, 1991).
27
which would otherwise have applied to it under the Act. Like the Speaker of the House,
the Majority leader, Representative Gebhart, decried section 402(b) for having "exempted"
the company from coverage by the legislation.40 Twenty-five members of the House co
signed a letter to the Rules Committee asking for an opportunity to vote on an amendment
which, by deleting section 402(b), would extend the standards of the Act to the 2,000 Wards
Cove employees:
[W]e are appalled at the provision of the Senate bill which exempts a single
employer, Wards Cove Packing Co., from its protection. We owe it to [the
company’s employees] to restore the meaning of the 1964 Civil Rights Act,
as we seek to do in this bill for every other American worker.... We hope
your committee will give the House an opportunity to prevent a travesty of
justice, by amending the bill to apply its provisions to the one employer in
this country which has won an exemption in the Senate.41
Seven of those who signed this letter, together with eight additional members of the
House, made individual statements on the floor denouncing the Wards Cove exemption.
All of them objected to section 402(b) because under it Wards Cove employees, unlike all
other litigants with pre-existing claims, could not rely on the Act. Representative Mink
argued:
Every other plaintiff with a pending case can move forward with the new
rules, with the new procedures this bill is going to establish, except for the
plaintiffs in the Wards Cove case ... who stuck together for their rights and
for their economic justice, just on the verge of being perfected [sic], now are
being stricken from the bill and told that they are the only plaintiffs, the only
Americans in the country, who cannot benefit from this bill.42
40 137 Cong. Rec. H 9515 (daily ed. Nov. 7, 1991).
41 137 Cong. Rec. H 9506 (daily ed. Nov. 7, 1991).
4‘ 137 Cong. Rec. H 9509 (daily ed. Nov. 7, 1991); see also id. (Rep. Mink) ("Every
other plaintiff that has a pending case can now proceed with their case, except for the
Wards Cove plaintiffs.")
28
Representative Mineta expressed similar outrage at the favored treatment accorded this
single Title VII defendant.
This whole controversy would have been unintelligible if Congress had understood
that the entire Act was inapplicable to pre-existing claims. Had the Act been so limited,
no one would have cared whether the Wards Cove exemption was included in section
402(b). In fact, however, members of both houses were repeatedly warned that the
administration adamantly insisted on the inclusion of section 402(b), and that the entire
compromise would collapse without section 402(b).43 Indeed, they were told expressly that
the President would veto the bill if section 402(b) were omitted:
Last night, while Frank Atonio watched, the Rules Committee was forced to
adopt a closed rule, because the White House said the bill will be vetoed if
this Wards Cove exemption is removed. I know that the Committee had no
choice, when faced directly with a veto threat.44
43 137 Cong. Rec. S 15953 (Sen. Dole) (section 402(b) is "a significant section of the
bill"), S 15963 (Sen. Kennedy) ("[I]t would be a serious mistake for the Senate to go back
on a compromise that was accepted in good faith"), S 15966 (Sen. Gorton) ("the
compromise was extremely fragile; the loss of any piece might well have shattered it") (daily
ed. Nov. 5, 1991); 137 Cong. Rec. H 9505 (Rep. Wheat) ("the Committee on Rules was
given the most firm assurance yesterday that, the other Chamber is absolutely committed
to the bill as written and that any changes would jeopardize the compromise"), H 9512
(Rep. Edwards) ("We were very disturbed when we found ... this special exemption for the
Wards Cove Packing Co.... It is outrageous .... However, ... [i]t is not going to do any
good to destroy this bill. There are going to be thousands, maybe millions of employees
in the future that we are cutting out of rights if we do. I assure you that this bill if it goes
back to the Senate will probably never emerge again...."), H 9515 (Rep. Michel) ("I know,
in talking with Members from the other body, what trauma they were going through ... to
get that baby adopted over in the other body. Within the last half hour I have talked to
several of those principals who were involved and said, ’Please, please don’t let this thing
fall apart or become unraveled over in your body’") (daily ed. Nov. 7, 1991).
44 137 Cong. Rec. H 9506 (Rep. McDermott). See also id. at H 9510 (Rep.
Abercrombie) ("Do not invoke the name of the President as if you were going through the
12 stations of the cross and tell me that these people have to sacrifice themselves on the
29
None of this could conceivably have occurred if either the Congress or the White House
regarded section 402(b) as entirely redundant.
(3) Section 101 Should Be Presumed Applicable to Pre-Existing Claims
We urge that the language and legislative history of the Civil Rights Act demonstrate
that Congress intended that section 101 apply to pre-existing claims. If however, the court
finds that language and history ambiguous, the decision in Bradley v. Richmond School
Board, 416 U.S. 696 (1974), directs that new legislation be applied to pre-existing claims
unless such application would result in "manifest injustice." No such injustice would be
caused by application of section 101 to the instant case. A decision by this court under
Bradley would appropriately be limited to the circumstances of this case, since whether
"manifest injustice" is involved turns on the particular section at issue.
(a) Bradley v. Richmond School Board Requires That Section 101
Be Applied to Pre-Existing Claims
The controlling standard of statutory construction is set out in Bradley v. Richmond
School Board, 416 U.S. 696 (1974). The question in Bradley concerned the applicability of
a 1972 statute authorizing awards of counsel fees in school desegregation cases.
Segregation of the Richmond schools dated from the turn of the century; the plaintiffs in
Bradley had sued in 1961, and had obtained a series of injunctions between 1964 and 1972.
The legal work for which counsel fees were sought had occurred prior to the effective date
altar of civil rights for some but not others), H 9511 (Rep. Schroeder) ("I am shocked that
the White House is cutting that kind of deal on civil rights"), H 9511 (Rep. Mineta) ("I
have heard the President would veto this bill unless this exemption for Wards Cove is
included"), H 9555 ("The Rules Committee last night ruled against an amendment ... to
strike the provision concerning Wards Cove.... [T]he White House has threatened to veto
any amendment....") (daily ed. Nov. 7, 1991).
30
of the 1972 law. The court of appeals denied a fee award, asserting that statutes should
not be construed to apply to conduct occurring before their effective date unless Congress
had clearly mandated such application.45
The Supreme Court unanimously overturned that interpretation of the statute,
holding that the correct rule of construction was precisely the opposite:
We anchor our holding in this case on the principle that a court is to apply
the law in effect at the time it renders its decision, unless doing so would
result in manifest injustice or there is statutory direction or legislative history
to the contrary.
416 U.S. at 711.
[W]e must reject the contention that a change in the law is to be given effect
in a pending case only where that is the clear and stated intention of the
legislature.
416 U.S. at 715. The Court observed that this rule of construction had long been applied
by decisions reaching back into the nineteenth century, most recently in Thorpe v. Housing
Authority o f Durham, 393 U.S. 268 (1969).46
Bradley establishes a three part test for determining whether the application of
section 101 to a pending case or other pre-existing claim would be "manifestly unjust." That
test considers:
(a) the nature and identity of the parties, (b) the nature of their rights, and
(c) the nature of the impact of the change in the law upon those rights.
45 See 416 U.S. at 715 n. 20 (quoting Thompson v. School Board o f Newport News, 472
F.2d 177, 178 (4th Cir. 1972)) ("legislation is not to be given retrospective effect to prior
events unless Congress has clearly indicated an intention to have the statute applied in that
manner").
46 416 U.S. at 711 (citing United States v. The Schooner Peggy, 5 U.S. 103 (1 Cranch)
(1801)).
31
416 U.S. at 717.
1. The first of the Bradley standards poses no problem for the application of the
Civil Rights Act to existing claims. The central distinction made by Bradley in this regard
is between "mere private cases between individuals," in which application of a new law to
pre-existing claims may be inappropriate, and litigation involving matters of "great national
concern," where application of a new statute to pre-existing claims is presumed absent clear
congressional intent to the contrary. 416 U.S. at 718, 719. The Court in Bradley identified
two specific illustrations of matters of public, rather than purely private, concern - school
desegregation, the issue in Bradley itself, and the public accommodations provisions of Title
II of the 1964 Civil Rights Act. In Title II litigation, the Court observed, the plaintiff
functions "as a private attorney general, vindicating a policy that Congress considered of
the highest priority." 416 U.S. at 718-19. The Court has characterized Title VII as of
similarly vital public importance. In Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975),
the Court observed that there was "an equally strong public interest" in implementation of
Title VII and Title II, 422 U.S. at 415, emphasizing that enforcement of Title VII served
the "[ijmportant national goals" of "eradicating discrimination throughout the economy and
making persons whole for injuries suffered through past discrimination." 422 U.S. at 417,
421.47
47 Mojica v. Gannett Company, Inc., 57 FEP Cas. 537, 539 (N.D.I11. 1991) ("[T]he 1991
Act, like the Civil Rights Act of 1964, is intended to promote equality in our nation and
provide a remedy for discrimination. This is a public concern of great importance to our
society"); Slender v. Lucky Stores, Inc., 1992 U.S. Dist. LEXIS 274 (N.D. Cal. 1992)
(Memorandum and Order, p. 9) ("[T]his case ... involves matters of great public concern -
- remedying race and sex discrimination and promoting equality"); EEOC Policy Guidance,
Dec. 12, 1991, p. 7 n.16 ("Arguably, the pursuit of nondiscriminatory employment is a
32
The prohibitions of section 1981 substantial overlap those of Title VII; both laws
serve a national purpose of similar importance.
2. With regard to the second Bradley factor, the nature of the rights at stake,
the Court explained that manifest injustice would result if the rights affected adversely by
application of a new law were vested rights.
The Court has refused to apply an intervening change to a pending action
where it has concluded that to do so would infringe upon or deprive a person
of a right that had matured or become unconditional.
416 U.S. at 719. This factor is primarily concerned with protecting accrued causes of action
of plaintiffs.
Section 101 manifestly does not deprive any party of any accrued claim, cause of
action, or other vested right. Application of section 101 to the instant case would accord
plaintiff a more effective remedy than existed under Patterson. But such an argumentation
of remedies affects no vested right, because "one cannot have a vested right in a state of
the law which left the injured party without, or with only a defective remedy." Ferrero v.
Associated Materials, Inc., 923 F.2d 1441, 1446 (11th Cir. 1991).48 At least as applied in
comparable public goal that militates against a finding of manifest injustice in retroactively
applying the damages provisions in the new Civil Rights Act"); cf. E.E.O.C. v. Westinghouse
Elec. Corp., 765 F.2d 389, 392 (3d Cir. 1985) (Fair Labor Standards Act meets this first
element of Bradley).
48 See also Bristow v. Drake Street, Inc., 1992 U.S. Dist. LEXIS 499 (N.D. 111. 1992)
(Memorandum Opinion and Order, p. 3)("Infringement upon ’matured’ rights is not a
concern here because ’[T[here is no vested right in remedies.’"); Slender v. Lucky Stores,
Inc., 1992 U.S. Dist. LEXIS 274 (N.D. Cal. 1992)(Memorandum and Order, p. 10 ("The
court rejects defendant s argument that by expanding defendant’s liability for intentional
discrimination the Civil Rights Act has infringed upon its unconditional rights. Defendant
has no unconditional right to limit plaintiffs to a particular type of remedy"); Freeborn v.
Smith, 69 U.S. 160, 175 (1865) ("there is no such thing as a vested right to do wrong");
33
this case, section 1981 and section 101 are essentially remedial. The discrimination alleged
by Vance was at all times unlawful under Title VII. The practical significance of section
1981 is that it provides an additional remedy for the intentional discrimination also
forbidden by Title VII. The remedy provided by section 1981 is in some respects more
effective than the Title VII remedy. The statute of limitations under section 1981 is longer
than that for the filing of a Title VII charge, and the monetary relief available under
section 1981 is greater than he relief available under Title VII.
3. With regard to the third Bradley factor, the impact of the change in the law,
the Court explained that it was concerned lest "new and unanticipated obligations ... be
imposed." 416 U.S. at 720. This factor is primarily concerned with protecting defendants
from being held liable for conduct which they had no reason to believe was actionable when
it originally occurred. Because the new statute at issue in Bradley dealt only with counsel
fees, and did not purport to affect when or how schools were required to desegregate,
application of that law to the case at hand worked "no change in the substantive obligation
of the parties." 416 U.S. at 721. The Court reasoned that there was no basis for
concluding that the school board, in refusing to desegregate and thus provoking the
litigation in question, had relied at the time on the absence of a counsel fee statute. 416
U.S. at 721.
The reasoning of Bradley is equally applicable here. Application of section 101 to
Downs v. Blount, 170 F.15, 21 (9th Cir. 1909)("[T]here can be ’no vested right to do
wrong.’"); C.Endlich, Commentary on the Interpretation of Statutes, 386-7 (1888)("the
defaulter can have no vested right in a state of the law which left the injured party without,
or with only a defective remedy
34
this case would not render unlawful conduct lawful when it occurred. On the contrary,
defendant certainly knew at the time of the alleged discrimination that racial discrimination
in employment was unlawful. As a government agency the Department of Housing
Preservation and Development was forbidden by the Fourteenth Amendment to engage in
racial discrimination in employment. Because it has more than fifteen employees, the
defendant has at all relevant times been covered by Title VII itself as well as by provisions
of New York law. At the time when this action arose, discrimination of the type alleged
was within this Circuit clearly unlawful under section 1981 under then unquestioned
appellate court decisions.
(b) New Remedies and Procedures For Enforcing Existing Rights Are Presumptively
Applicable to Pre-Existing Claims
In applying Bradley this Circuit, like all others, distinguishes between legislation
altering remedies and procedures — which are presumptively retroactive — and statutes that
render unlawful previously lawful conduct, or affect vested rights — which are presumptively
non-retroactive. The leading Second Circuit case applying this distinction, a decision which
we believe controlling here, is Brown v. General Services Administration, 507 F.2d 1300 (2d
Cir. 1974), aff'd 425 U.S. 820, 826 (1976). Prior to 1972, Title VII did not apply to federal
employees. Section 717 of the 1972 amendments to Title VII forbade federal agencies to
discriminate on the basis of race, and authorized victims of such discrimination to bring suit
in federal court for back pay, injunctive relief, and counsel fees. The 1972 amendment was
widely interpreted to apply to acts of discrimination occurring prior to the effective date
of the statute. See, e.g. Revis v. Laird, 627 F.2d 982, 983 (9th Cir. 1980); Mahroom v. Hook,
563 F.2d 1369, 1373 (9th Cir. 1977). Like many other Circuits, this Court reasoned that
35
although Title VII itself did not forbid federal employment discrimination prior to March
24, 1972, such discrimination had in fact been illegal before 1972 under the Constitution,
an earlier statute and several Executive Orders. Thus section 717 did not declare illegal
previously lawful conduct; rather, it provided new remedies and enforcement machinery to
redress conduct that had been unlawful long prior to 1972. Even though, prior to 1972 "it
was doubtful that backpay" could be awarded by the courts to victims of federal
employment discrimination, Brown v. General Services Administration, 425 U.S. 820, 826
(1976), the Title VII amendments expressly authorizing that remedy were applied to pre-
Act claims.
In Brown this court explained that section 717(c)
merely provides a new remedy for enforcing an existing right. The pre-1972
right of a federal employee not to be discriminated against is to be found in
Cogressional enactments and Executive Orders.
507 F.2d at 1305. Similarly, the Fourth Circuit held:
[T]he 1972 Act did not create a new substantive right for federal employees.
The Constitution, statutes and executive orders previously granted them the
right to work without racial discrimination. Section 717(c) simply created a
new remedy for the enforcement of this existing right.... The Act provided
Roger with a supplemental remedy .... [A] federal employee’s right to be free
from racial discrimination existed before the passage of the 1972 Act. If it
includes — as it should — a new remedy to enforce an existing right, then
under the general rule favoring retrospective application of procedural
statutes, §717(c) should be applied to pending cases ....
Koger v. Ball, 497 F.2d 702, 705-07 (4th Cir. 1974). The District of Columbia Circuit
endorsed the reasoning in Koger.
Section 717(c) is merely a procedural statute that affects the remedies
available to federal employees suffering from employment discrimination.
Their right to be free of such discrimination has been assured for years.
36
Womack v. Lynn, 504 F.2d 267, 269 (D.C. Cir. 1974) (Emphasis in original).49 The Third
Circuit concurred:
Congress did not need to create new substantive rights for federal employees
when it enacted §717. Rather, ... this provision was designed only to make
judicial enforcement of longstanding federal substantive policies against
employment discrimination more certain and more effective than in the past.
Section 717 ... is a classic example of a procedural or remedial statute
applicable to cases pending at the time of enactment.
Sperling v. United States, 515 F.2d 465, 473-74 (3d Cir.), cert, denied, 426 U.S. 919 (1975).
The Seventh Circuit applied the same reasoning:
Freedom from racial discrimination by the federal government has long been
guaranteed by the Fifth Amendment.... Executive Orders ... provided
adminis- trative remedies .... This procedure, however, proved ineffective in
dealing with problems of job discrim- ination.... The right of federal
employees to seek relief from racial discrimination by the federal government
was thus available some years before ... 1972. Section 717(c) simply provided
one more step in the existing review process.
Adams v. Brinegar, 521 F.2d 129, 131-32 (7th Cir. 1975).50 Several of these decisions
49 See Thompson v. Sawyer, 678 F.2d 257, 287-88 (D.C. Cir. 1982):
"Federal employees thus obtained a new means to enforce their preexisting
right to be free from discrimination .... The 1972 Amendments to Title VII
only added a forum and procedures for federal employees — it was not the
date of birth of the right to a federal job free of racial or sexual bias ....
Congress provided federal employees with a new arsenal of remedies — not
rights, but remedies."
50 See Revis v. Laird, 627 F.2d 982, 983 (9th Cir. 1980); Mahroom v. Hook, 563 F.2d
at 1373 (quoting Koger and Womack), cert, denied, 436 U.S. 904 (1978); Eastland v.
Tennessee Valley Authority, 553 F.2d 364, 367 n.5 (5th Cir. 1977); Huntley v. Department of
Health, Education and Welfare, 550 F.2d 290, 295 (5th Cir.), cert, denied, 434 U.S. 985
(1977); Allen v. United States, 542 F.2d 176, 177 n.2 (3rd Cir. 1976); Weahkee v. Powell, 532
F.2d 727, 729 (10th Cir. 1976); Ettinger v. Johnson, 518 F.2d 648, 651 n.71 (3rd Cir. 1975)
(quoting Sperling)-, Brown v. General Services Administration, 507 F.2d at 1305-06, (endorsing
reasoning of Womack and Koger)-, but see Place v. Weinberger, 497 F.2d 412 (6th Cir. 1974),
vacated 426 U.S. 932 (1976).
37
observed that insofar as it added to the available method of enforcement, a right to file suit
in federal court, section 717 was merely providing a new tribunal for redressing existing
rights.51 The Supreme Court approved this interpretation of the 1972 Title VII
amendment in Brown v. General Services Administration, 425 U.S. at 824 n.4.
The same presumption in favor of applying new remedies to pre-existing claims was
applied in a variety of other contexts. In 1974 the ADEA was amended to cover federal
employees, who had previously been outside the protection of the Act. For many years
before 1974, however, age discrimination in federal employment had been forbidden by
Executive Orders and Civil Service Commission regulations. Accordingly, the courts
applied the 1974 ADEA amendment to pre-Act claims. The Ninth Circuit, noting these
"longstanding" prohibitions against age discrimination, explained:
The age discrimination policy, like the anti-discrimination policy of Title VII,
was seriously hampered by the lack of any effective enforcement machinery
prior to the amendments in issue. The ADEA amendments, like the 1972
Title VII amendments, did not create new substantive rights, but simply
created new procedures and remedies for the vindication of pre-existing
discrimination claims.
Bunch v. United States, 548 F.2d 336, 339 (9th Cir. 1977) (citations omitted). Similarly, the
Fair Labor Standards Act, which prohibits certain forms of sex based salary discrimination,
was amended in 1974 so that for the first time it applied to federal agencies. The D.C.
Circuit held the 1974 amendment applicable to all pending claims against the General
Printing Office, noting that a specific Executive Order forbidding discrimination at the
51 Koger v. Ball, 497 F.2d at 706 (citing Justice Holmes opinion in Hallowell v.
Commons, 239 U.S. 506, 508 (1916)); Adams v. Brinegar, 521 F.2d 129, 132 (7th Cir, 1975)
(citing Hallowell).
38
GPO had been issued in 1969. Thompson v. Sawyer, 678 F.2d 257 (D.C. Cir. 1982). The
court of appeals emphasized that GPO could not complain about this new remedy, or
invoke any presumption against application of the FLSA, since GPO’s underlying conduct
was prohibited at the time it occurred:
GPO contends that the FLSA forecloses a retroactive reward of liquidated
damages here, because GPO had the best of all reasons for believing that its
actions were not illegal under the FLSA — namely, that GPO was not
covered by the FLSA.... The defendant, GPO, is hardly the innocent actor
being subjected to surprising and unexpected obligations. At least from 1969
on ... it had been told not to discriminate as it was found to have done....
GPO ... never had a right to discriminate, even though sovereign immunity
for a long time insulated GPO from liability for its transgressions.52
* ' * *
[Tjhe statute merely extends the remedies available for the enforcement of
existing rights.53
Similarly, the FLSA was amended in 1977 to provide a cause of actions for employees of
private or public employers who were retaliated against for seeking to enforce the statute.
Such retaliation by employers had long been illegal, but the prohibition was not until 1977
enforceable by a private action. This amendment too was applied to existing claims:
An employee’s right to be free from discharge or other employment
discrimination for attempting to have enforced the provisions of the FLSA
has been protected for years. The amendment ... did not create new
substantive rights, but simply affected the remedies available to employees for
vindication their pre-existing rights.
Bush v. State Industries, Inc., 599 F.2d 780, 786 (6th Cir. 1979). Section 101 of the 1991
Civil Rights Act, like the 1972 legislation at issue in Brown, is entirely remedial.
Employment discrimination by a city has long been prohibited by the Fourteenth
52 678 F.2d at 278-80.
53 678 F.2d at 279 n.21.
39
Amendment and by Title VII; section 101 has merely provided a new method of
enforcement.
As this court noted in Morgan Guaranty Trust Co. v. Republic o f Palau, (No. 91-9224;
opinion dated Aug. 5, 1992), the Supreme Court created some uncertainty regarding the
scope of Bradley by its subsequent decision in Bowen v. Georgetown University Hospital, 488
U.S. 204 (1988). Nonetheless, panels in this Circuit have continued to cite and apply
Bradley since the decision in Bowen. Taub, Hummel & Schnall v. Atlantic Container Line,
894 F.2d 526, 529 (2d Cir. 1990); United States v. Colon, 961 F.2d 41, 45 (2d Cir. 1992);
Leake v. Long Island Jewish Medical Center, 869 F.2d 130, 131 (2d Cir. 1989) (endorsing the
reasons set forth in district court opinion, 695 F. Supp. 1414 (E.D.N.Y. 1988)). Only six
months ago this Court rejected a legal argument because, had it been accepted, "the Bradley
rule would have little if any application." United States v. Colon, 961 F.2d at 45.
The only decision of this Court applying Bowen held that decision controlling
because a party had "relied to its detriment on the former rule." Lehman v. Burnley, 866
F.2d 33, 37-38 (2d Cir. 1989). This is consistent with pre-Bowen law declining to apply a
new statute where a party "would have acted differently had it been able to anticipate the
change in the law." Litton Systems v. American Tel. & Tel. Co., 746 F.2d 168, 176 (2d Cir.
1984). Similarly, Judge Martin in his dissenting opinion in Insurance Company of North
America v. U.S. Dept, o f Labor, (No. 91-4193, opinion July 16, 1992), cited Bowen in support
of his objection that an interpretation of the Longshore and Harbor Workers’
Compensation Act imposed liability for conduct that was lawful when it occurred.
In Morgan Guaranty Trust Co. this court cited the definition of "retroactive law" in
40
Black’s Law Dictionary. That definition reflects legal usage well established over a century
ago, which characterized as "retroactive" only laws impairing vested rights or rendering
actionable previously lawful behavior. That distinction was spelled out in detail by the
celebrated author of Black’s Law Dictionary in Black’s Interpretation o f Laws (2d ed.
1911).54 Black summarized "the General Rule" to incorporate certain established
exceptions: Except in the case of remedial statutes and those which relate
to procedure in the courts, it is a general rule that acts of the
legislature will not be so construed to make them operate
retrospectively....55
Black emphasized that a statute cold not properly be labeled "retrospective" unless it
altered substantive or vested rights as they stood under the law at the time of the
occurrence at issue:
A retrospective law is one which is made to affect acts or transactions
occurring before it came into effect, or rights already accrued, and which
imparts to them effects which are not inherent in their nature in the
contemplation of the law as it stood at the time of their occurrence.56
Clearly statutes which merely restore the law to what it was "at the time o f . . . occurrence"
do not fit within this definition.
A different rule of construction applies to statutes creating new remedies:
Remedial statutes are to be liberally construed, and if a retrospective
interpretation will promote the ends of justice and further the design of the
54 H.C. Black, Handbook on the Construction and Interpretation o f the Laws (1911).
55 Id. at 385 (emphasis added).
56 Id. at 380; See also id. at 404. ("The statutes ... subjected to the strictness of judicial
construction — statutes which may be properly denominated ’retrospective’ -- are such as
take away or impair vested rights acquired under existing laws, or create a new obligation,
impose a new duty, or attach a new disability, in respect to transactions or considerations
already past").
41
legislature in enacting them, or make them applicable to cases which are
within the reason and spirit of the enactment, though not within its direct
words, they should receive such a construction, provided it is not inconsistent
with the language employed.... In the class of statutes which may be
construed retrospectively are those which create a new remedy, or enlarge the
existing remedy for existing cause of action.57
The provision in section 102 for compensatory and punitive damages fits within this
exception. Application of new procedures to pre-existing claims was the norm:
Statutes regulating the procedure of the courts will be construed as applicable
to causes of action accrued, and actions pending and undetermined, at the
time of their passage, unless such actions are expressly excepted, or unless
vested rights would be disturbed by giving them a retrospective operation. 58
(c) Section 101 Should be Applied to Pre-Existing Claims Because it is Restorative
Legislation
A number of circuit courts have held that where Congress adopts legislation to
restore legal principles that prevailed until a Supreme Court decision to the contrary, that
legislation should be presumed applicable to pending cases. The type of legislation to
which this rule of construction is addressed is largely a recent phenomenon. The same rule
is also followed in state decisions.
Three circuits have applied this rule of construction. In Mrs. W. v. Tirozzi, 832 F.2d
748 (2d Cir. 1987), the Second Circuit, in applying a new statute to pending cases,
emphasized:
Congress stated that [the law] was designed to reestablish statutory rights
repealed by the U. S. Supreme Court. . . . The . . . amendment in the
present case simply codifies a congressional purpose long in place which
Congress believed the Supreme Court had misinterpreted.
57 Id. at 404-410.
58 Id. at 108.
42
832 F.2d at 754-55. In Leake v. Long Island Jewish Medical Center, 869 F.2d 130 (2d Cir.
1989), the court affirmed the application, on similar grounds, of the Civil Rights
Restoration Act to pre-existing claims.59 In Ayers v. Allain the Fifth Circuit observed:
Retroactive application of a statute is appropriate when Congress enacts the
statute to clarify the Supreme Court’s interpretation of previous legislation
thereby returning the law to its previous posture. . . . "[W]here Congress
clearly indicates its intention to reject a recent Supreme Court interpretation
and restore the law to its former state, retroactive application of a newly
enacted statute is appropriate."
893 F.2d 732, 754-55 and n. 116 (5th Cir. 1990), vacated on other grounds, 898 F.2d 1014
(5th Cir. 1990)(en banc), cert, granted on other grounds, 113 L.Ed.2d 644 (1991).60 In
Lussier v. Dugger, 904 F.2d 661 (11th Cir. 1990), the court applied the Civil Rights
Restoration Act to a pending case because the statute "does not change prior legislation,
but merely corrects prior judicial interpretations which the Congress believed ’unduly
narrowed’ . . . the civil rights laws." 904 F.2d at 688.61 Similarly, state statutes intended
to restore prior law have been construed as applicable to pre-existing claims. In re Grey,
29 B.R. 286, 289 (D. Kan. 1983); Laubie v. Sonesla International Hotel Corp., 752 F.2d 165,
59 Leake v. Long Island Jewish Medical Center, 695 F. Supp. 1414, 1417 (E D N Y
1988):
[Tjhe use of the terms "restore" and "clarify" indicate that Congress did not
intend to change the statute; rather it intended to reject the Supreme Court
interpretation . . . . The stated purpose of the statute is not to amend but to
"restore" and "clarify."
60 See also While v. Estelle, 556 F.2d 1366, 1367-68 (5th Cir. 1977).
61 904 F.2d at 665 (applying law adopted "with the expressed purpose of restoring ’the
prior consistent and long-standing executive branch interpretation. . .’ of four civil rights
laws"); see United States v. Dallas County, 739 F.2d 1529 (11th Cir. 1984).
43
167-68 (5th Cir. 1985).
This interpretation of restorative legislation is a sensible assessment of congressional
intent. The purpose of such legislation to return the law to where it was prior to the
disapproved judicial interpretation. As one Senator quoted in Leake put it, what "we have
done is change the law back to what we thought it was." 695 F.2d at 1414. If such
legislation were applied only prospectively, the law - for numerous litigants and for perhaps
years into the future -- would not be "restored" at all. Where Congress considered the
disapproved decision a mistaken departure from prior precedents, it is unlikely that
Congress would have intended to keep that error in effect. A statute adopted for the
express purpose of restoring prior law cannot plausibly be understood to codify — for all
pre-existing but unresolved claims — the very decision which Congress disapproved.
Section 101 itself is the paradigm of restorative legislation. It was adopted for the
express purpose of overturning the Supreme Court decision in Patterson, in order to restore
the interpretation of section 1981 that had prevailed until that 1989 decision.
V. PATTERSON V. M CLEAN CREDIT UNION SHOULD NOT BE APPLIED
RETROACTIVELY________________ ___________________________________
In the months following Patterson and the other now-overturned Supreme Court
decisions, it was often assumed and occasionally held by the courts that those decisions
would be applied retroactively to pre-decision claims. The enactment of the Civil Rights
Act, wholly apart from whether and when the Act itself applies to pre-existing claims, has
altered dramatically the context and considerations bearing on the retroactivity of those
judicial decisions. The adoption of the Act is a supervening change in the law that
provides a basis for concluding that retroactive application of the now repudiated decisions
44
is no longer appropriate.
A holding that Patterson and the other Supreme Court cases should not be applied
retroactively would have a different impact than a determination that the Act itself should
apply to pre-existing claims. First, unlike a determination in favor of such an application
of the Act, a ruling against decisional retroactivity would not affect claims, such as a claim
for damages under section 102, which clearly did not exist before and were not affected by
the eight overturned Supreme Court decisions. Second, a decision against retroactive
application of a decision would affect only cases arising before the decision at issue, and
would not extend to claims arising between the date of the decision and November 21,
1991. The Supreme Court decision in Patterson did not decide, and could not have even
considered, whether retroactive application would still be appropriate if the Court’s own
decision was later overturned by Congress. That question remains an open, unresolved
issue in the Supreme Court, and thus in the lower courts as well. Even in Patterson itself,
the Supreme Court’s mandate would not preclude a lower court from considering this
question, and now holding, in light of the Civil Rights Act, that Patterson should not be
applied retroactively. "[T]he appellate mandate relates to the record and issues then before
the court, and does not purport to deal with possible later events." Standard Oil o f Cal. v.
United States, 429 U.S. 17, 18 (1976).
Under Chevron v. Huson, 404 U.S. 97 (1971), the first factor required to justify non
retroactivity is that the decision in question "must establish a new principle of law ... by
overruling clear past precedent on which litigants may have relied...." 404 U.S. at 106.
Neither Patterson nor the other overruled decisions purported to consider whether they
45
might have had this effect. But Congress, in voting to overturn these decisions, based that
legislation on its finding that the decisions had overruled previously well established
precedents — precedents on which plaintiffs had frequently relied. Under Chevron this
court must also to consider "the purpose and effect" of the new decision, and whether
failure to apply that decision retroactively will "retard its operation." 404 U.S. at 107. Thus
in Patterson, where the majority opinion was based on a view that a broad interpretation
of section 1981 would interfere with Title VII, the majority might in 1989 have evaluated
whether such interference would occur if the rule in Patterson were not extended
retroactively. But today the policy analysis underlying the Patterson majority opinion has
been disavowed by Congress. It would be indefensible for the courts to apply Patterson
retroactively in order to achieve a "purpose and effect" that Congress has now expressly
repudiated.
Justice Stevens, Blackmun and Souter take the view that full retroactivity is likely
to be appropriate because non-retroactivity would mean that the courts in some instances
would continue to enforce now-repudiated legal principles. Thus in American Trucking
Assns. v. Smith, 110 L.Ed.Zd 148 (1990), Justice Stevens wrote:
[Ojnce the decision to abandon precedent is made, I see no justification for
applying principles determined to be wrong, be they constitutional or
otherwise, to litigants who are in or may still come to court.
110 L.Ed.2d at 183. In James Beam Distilling, Justice Stevens explained that retroactivity
"is in keeping with the traditional function of the courts to decide cases before them based
upon their best current understanding of the law." 115 L.Ed.2d at 488. But where the
"principles" and "understanding" in the decision at issue have been disavowed and
46
overturned by Congress, these same arguments cut decisively against retroactive application
of the repudiated decision. In such a situation — which is precisely the situation in this case
-- retroactive application itself would mean "applying principles determined to be wrong",
and disregarding the "best current understanding of the law."
In order to dismiss a pre-Patterson section 1981 claim, a court would today have to
hold both that the repudiated Patterson decision is retroactive and that the legislation
overturning Patterson is not. Such a combination of conclusions seems indefensible as a
matter of statutory law, where Congress is responsible for determining the content of the
law, and the courts play the more limited role of carrying out the will of Congress. The
need to decide particular controversies requires the courts to interpret statutes. But such
interpretations, however scholarly and well intentioned, cannot without considerable
exaggeration be described as having definitely "found" the actual intent of Congress when
the original statute is less than clear and the courts, or the members of the Supreme Court,
are divided. This is particularly true where a new Congressional interpretation has
repudiated a prior judicial construction. Due respect for the institutional roles of the
courts and Congress requires, at least ordinarily, that the courts not adamantly insist on
applying retroactively a decision that has been overturned by legislation restoring the law
which prevailed prior to that decision.
47
CONCLUSION
For the above reasons, the decision of the district court should be reversed.
/ /
Respectfully submitted,
C. VERNON MASON
401 Broadway, Suite 1108
New York; New York 10013
(212) 219-0147
JULIUS L. CHAMBERS
ERIC SCHNAPPER
NAACP Legal Defense and
Educational Fund, Inc.
16th Floor
99 Hudson Street
New York, New York 10013
(212) 219-1900
Counsel for Plaintiff-Appellant
48
CERTIFICATE OF SERVICE
I hereby certify that on this 5th day of October 1992, I
served three copies of the Brief for Plaintiff-Appellant on counsel
for appellee by causing them to be deposited in the United States
mail, first class postage prepaid, addressed to 0. Peter Sherwood,
Corporation Counsel for the City of New York, 100 Church Street,
New York, New York 10007.