Irene MOJICA, Plaintiff-Appellee, Cross-Appellant, v. GANNETT COMPANY, INC., Defendant-Appellant, Cross-Appellee

(sum- (8th Cir.1983) Army, 708 proper complainant judgment where

mary MOJICA, Plaintiff-Appellee, Irene in- officer with the EEO provide failed to Cross-Appellant, her to take action for formation sufficient v. v. United complaint); Jordan on his COMPANY, INC., Defendant- GANNETT Cir.1975) (8th (agency States, F.2d Cross-Appellee. Appellant, prosecute for failure dismissed claims 91-3921, 92-1104. Nos. deliberately refused complainant has the agency never If the cooperate). Appeals, Court of States United of the com- the merits to reach opportunity Circuit. Seventh should not exam- plaint, federal courts the 4, 1993. March Johnson, 614 F.2d at ine the merits either. Johnson, F.2d v. (quoting Ettinger Cir.1975)). (3rd specific in- requested The EEO counselor on several occasions. from Pack formation Park, Andry (argued), Oak Armand L. explain how repeatedly urged Pack to She IL, plaintiff-appellee. any rela- provided Pack had materials (argued), Brenda C. DiNardo Lawrence allegations defamation and to her Griffith, Feis, Seyfarth, J. H. Pamela relatives. The of her the non-selection Geraldson, Chicago, Shaw, Fairweather & specif- Pack that without warned counselor IL, defendant-appellant. allegations, concerning her ic facts Div., Foreman, Atty., Criminal have to terminate U.S.

counselor would Fred IL, Gerson, Office finally Chicago, Stuart M. Army can- counseling process. The Gen., Lewis, Marleigh M. Atty U.S. Jacob complaint because she had celled Pack’s Div., Dover, Justice, Ap- Dept. D. information sufficient provided not DC, Section, Washington, for ami- pellate By cooperating Army take action. cus curiae claims, Army developing with the administrative review Pack frustrated PER CURIAM. merits of her claims. 40(f), Rule on Febru- Pursuant Circuit Thus, other than those stated for reasons 22, 1993, majority of the members of ary court, Affirm the dis- by the district we this matter to hear en this Court voted Z. Pack. of the claims filed Clara missal panel’s pro- banc, to decide whether of the matter conflicts posed disposition v. American holdings Co., Marine Service Commercial Cir.1992), (7th Luddington Telephone 966 F.2d Indiana Bell Cir.1992). argu- the oral The date for course. ment will be set due CUMMINGS, dissenting Judge, Circuit to rehear en banc.1 from the decision 22, 1993, February On whether the Civil Court decided to consider Landgraf of 1991 is retroactive. Rivers v. Film Products and USI voting Judge Cudahy joined me in 1. Circuit rehearing deny banc. en H59 — U.S. —, vor 1981 and Title under U.S.C. VII of Roadway Express, All circuits to con Rights 122 L.Ed.2d 649. the 1964 Civil U.S.C. question save the Ninth have sider this agree. I expresses 2000e-2. Act not intend to that did decided unambiguous Congress' regulate intent to retroactively reopen apply the 1991 passage. cases tried after the Act's In the tried the Act. absence before Luddington decided that intent, majority of circuits decid of such apply retroactively would not to cases apply Act does not to cases ed that the pending appeal pas before the Act's my enactment. To knowl tried before its sage. Mojica's Because case af was tried however, edge, no circuit has examined the passed, ter the Act was Mozee and Lud here, separate question, presented of dington require neither nor allow this Congress intended the 1991 Act to whether disregard Congress' express Court to in I its enactment. apply to cases tried after apply Rights tent to 1991 Civil Act to beyond doubt think the 1991 shows her trial. intended it to to new that brought passage after the of the Act. trials

Therefore, I dissent from the decision I. grounds that hear this case en banc on the Gannett’s radio stations their divide did not determine Luddington Mozee and broadcasts into “shifts” on the num- based intent, Congressional since question this type ber and of listeners attracted at differ- not before them. Those cases was day. Day bring ent times of shifts more brought in to the claims should shifts; night listeners than more listeners case, was tried after the 1991 this which revenues; generate higher advertising panel opin passed. Act was I drafted the shifts,” so-called “drive-time when commut- circulated under Circuit Rule ion was cars, are in their earn the most listen- ers 40(f), publish my and have decided to views highest ers and the revenues of all. For inform the about order to better shifts, jockeys, day and drive shifts in disk the issues that divide this Court.2 particular, higher profile jobs offer Mojica, Hispanic-Ameri Irene a female night Mojica higher salaries than shifts. can, overnight jockey disk works as an for a radio sta- has worked Gannett-owned WGCI-FM, a radio station owned Gan job as a tion since when she took a targets African- Company nett WVON-AM, part-time announcer on then greater Chicago audience in the American She counterpart the AM to WGCI-FM. Mojica promoted claims that area. WGCI shifts, variety including the worked a qualified less African-American men to shifts, until when WVON-AM drive her, prime daytime shifts instead of dis began broadcasting programming the same criminating against her she is an Mojica then worked for offered on WGCI. Hispanic brings Her case woman. In part-time as a announcer. WGCI-FM question for the first time the gave joba as a January of WGCI and how the Act of whether (“DJ”), overnight jockey disk full-time may apply to a case tried after its July until of 1989. where she remained Mojica argues that our recent enactment. relegated part-time work for She was opinions in Mozee v. American Commer station tried a new five months while the Co., (7th cial Marine Service DJ, overnight in December of 1989 but Cir.1992), Luddington Bell Indiana position Cir.1992), Mojica returned to her as a full- Telephone began overnight Since she work- require jury time DJ. do not us to overturn a verdict 1986, Mojica applied ing has origin for national discrimination in her fa for WGCI Judge the full Court under A. Kaufman it be circulated to 2. Senior District Frank (D.Md.), sitting by designation, joined 40(f). Circuit Rule panel opinion. Since he is not a member of this Court, he could not vote on en banc whether 1071-1100, 102-166, here- 105 Stat. 3. Pub.L.No. justified. Judge Circuit Man- consideration after referred to as "the Act.” panel opinion ion dissented from the and asked men. She given to black non-overnight shifts that of- but one were for several raise since (and significant pay prestige salaries, more not received better fered $30,- working as then around 1981; earns now congenial she more presumably time, (unless gains in this year she remains relief hours). Rejected each she AM shift at at Court). the 2:00-6:00 drive-shift DJs DJ on The two star full-time salary; her roughly ten times WGCI. WGCI earn Mo- 1986 showed that conducted studies against Gannett in filed Mojica suit per- ratings within 10 were jica’s popularity 6, July Illinois on District of Northern DJs star All other of the second DJ. cent paying charged Gannett with She 1990. popular than equally or less at rated WGCI work, comparable men for women less than Only yet all earn salaries. Mojica, better (29 Pay Act Equal U.S.C. by the barred broadcasting experi- have more the stars by Title 206), barred sex discrimination § Mojica. than ence (42 Rights U.S.C. the 1964 Civil VII of 2000e), origin discrimination national § testimony career at about her Mojica’s VII, 1981 and Title by 42 barred U.S.C. § im- constant ambition to a WGCI reveals against Mojica complain- for and retaliation performance and prove her advance treatment, 1981. ing her barred about Beginning non-overnight daytime or shift. 1991, anticipating the On November 1980s, her regularly asked early she Rights Act of passage the Civil supervisors she had to do to advance what complaint to to amend her Mojica moved She testified position her station. punitive compensatory and dam- demand queries, her su- response these judge The trial ages jury trial. and advice, variety of and pervisors gave her a on November granted motion her responded, experimenting with that she law. days after the Act became six testimony also style delivery. her Her and the alternate jury for the demand and Save increasingly frus- that she became reveals in one count damages calculation afforded advance, failure to and was over her trated however, Moji- complaint, six-count of her conversations with led to understand from complaint was identical ca’s amended opportunities that her were supervisors her complaint. The amended com- original her not She she was black. limited because underlying or pled no new events plaint particular, oc- recalled one conversation place recovery. took be- Trial theories manag- curring where the station 2-5, The jury December fore a on er, her had Dyson, told that she Marv except on jury for all claims found Gannett evening shift she was received an because discrimination; origin on that national male, and the station wanted not a black $35,000 claim, wages in lost Mojica won testimony mentions other male. Her black damages. $125,000 punitive On De- and well, Dyson her or as with conversations 13, 1991, judge partially the trial cember or she she was told supervisors, where judgment motion for granted Gannett’s lim- opportunities were understood (j.n.o.v.) and notwithstanding the verdict The not black. direct ited she was punitive damages award. overturned examination, however, ap- did not offer upheld jury’s ver- court otherwise The proximate dates all these conversations. however, dict, supplemented and Dyson making such comments. denied ever equitable pay increases series of three January $5,000, 1 and take effect argues initial matter that as an Gannett January 1 of 1993. July 1 Mojica prove na offered to the evidence sup origin discrimination could not tional argued that because Mojica’s complaint verdict, port and that the trial court an- promoted other Hispanic, WGCI she granted Gannett's motion should have higher sala- to better shifts nouncers j.n.o.v. Mojica's in full. Gannett belittles popular with listeners were less ries who single "a testimony offering evidence of experience on the air. had less and who [by allegedly made to her Marv Mojica statement trial evidence at showed ** * Dyson early alleg non-overnight shifts after applied for six 1980s] WGCI-FM, repeated by (appellant's him in working edly and all 1986" began she

H61 5). reply Passing Dy brief at over how II. alleged

son's remarks can be characterized question The second in this case is "single as both a statement" and "re whether the trial judge properly allowed peated," offers nothing Gannett to rebut Mojica to amend her complaint to ask for Mojica's allegation of several conversations procedures given remedies to vic- Dyson's jury other than denials. The tims of discrimination the Civil Mojica Dyson. entitled to credit over Yar Act of 1991. If correctly applied, the Act Oldsmobile, brough Inc., v. Tower Mojica allowed jury demand a trial and (7th Cir.1986). A reasonable compensatory seek punitive jury remarks, Dyson's could find that cou under Title VII and 1981. If her case pled Mojica's with the evidence of ratings had been tried before passage of the compensation and compared to other Act, her Title VII claims would not have DJs, enough WGCI were to show that gone to jury—thus the Act Moji- allowed reasons promoting non-Hispan WGCI's ca to use a procedure different press her Mojica pretext ic men over were a for dis discrimination claims. While discriminato- crimination Douglas under McDonnell ry assignments shift illegal were before Green, 792, Corp. 1817, v. 411 U.S. 93 S.Ct. and after passage of the the Act 36 L.Ed.2d 668 correctly Gannett created a tougher remedy by allowing Moji- asserts that we review the denial of a ca to claim compensatory punitive dam- j.n.o.v. motion Aungst de novo. v. West ages under 1981, Title VII and in addi- inghouse Corp., Electric 937 F.2d equitable tion to remedies such as pay back (7th Cir.1991). 1219-1220 jury's But the previously offered Title VII alone. supported by verdict this case is substan evidence, tial and the trial properly court application retroactive of the 1991 denied j.n.o.v. Gannett's motion as to com Act to previously decided cases pensatory damages. Id. spawned has cottage industry in the Appeals. Courts of Although specific ap There argument remains that proaches case, varied from case to this we should punitive damage reinstate the Court and most others have held that Con award judge thrown out the district on gress (either did not indicate in the statute j.n.o.v. Gannett’s agree motion for I legislative or in history) whether the Act judge trial that there was no evidence apply pending appeal. to cases “malice,” that Gannett’s conduct showed Mozee v. motive,” American Commercial behavior, Marine “evil “reckless” or “cal- Co., (7th 963 F.2d Cir.1992); Service 929 lous indifference.” Yarbrough, 789 F.2d Luddington Telephone v. Indiana Bell judge at 514. The trial Moji- observed that Co., (7th Cir.1992).4 966 ca F.2d 225 friendly working had a Courts relationship with conflicting then examined the supervisors, including presumptions Dyson. Marv retroactivity prospectivity Intentional per discrimination is not se ma- offered in licious, requires Georgetown Hospital, and the Act Bowen v. evidence of 488 U.S. 204, 208, support 468, 471, malice punitive 109 award of 102 L.Ed.2d damages. 102(b)(1). (1988) ("congressional Section 493 Because enactments * * * there was no evidence of malice in this will not be construed to have retroac case, I jury’s would not reinstate the puni- tive effect their language requires unless damage tive result"), award. Bradley v. Richmond Ass'n, Inc., Group Cir.1992); Inc., 4. See also Gersman v. Health Group, Hicks v. Brown 982 F.2d (D.C.Cir.1992); Landgraf (8th 975 F.2d 886 Cir.1992) (en banc); v. USI Baynes v. AT & T Products, (5th Cir.1992), Film 968 F.2d 427 cert. (11th Technologies, Cir.1992). 976 F.2d 1370 — —, granted, 113 S.Ct. City County Contra: Davis v. San Francis 649; Ben's, Inc., L.Ed.2d Johnson v. Uncle co, (9th Cir.1992) (finding 976 F.2d 1536 that (5th Cir.1992); Cincinnati, Vogel apply retroactively intended to the Act (6th Cir.1992); Roadway 959 F.2d 594 Harvis v. pending cases), part vacated in on denial of Inc., (6th Express, Cir.1992) 973 F.2d 490 cert. (9th Cir.1993); rehearing, F.2d Estate of Roadway Express, denied sub nom. Rivers v. Martin, (9th Reynolds Cir.1993) 985 F.2d 470 — U.S. —, 649; Fray 113 S.Ct. 122 L.Ed.2d (same). v. Omaha World Herald pas- occurred before ing conduct that Board, School Act. sage of the (1974)("a court time it at the effect apply the law is to of this issue seem discussions Previous decision"). concluded its renders must be either that to assume rule, general while stated the Bowen purely prospective. retroactive or purely very retroactive, circum limited Bradley "applies then courts purely is If the Act * * pre at 938. Our *." 963 F.2d old and order overturn verdicts stances must the Act did offered standards thus decided trials under vious cases purely reopen prospective, If Act is or Appeals require Courts not may only it to conduct apply courts then tried and decided re-examine passed. Nei- occurs after the conflated two decisions Act. These Congressional approach faithful ther retroactivity, however: types of different distinguish between Congress can intent. retroactively Act did not retroactivity, differing degrees the Act was occurring before to trials has not in the Act. It ordered has done so might that the we reasoned passed, disputes, reopen settled but courts to (i.e. discrimi retroactively to conduct provisions apply the Act’s courts to ordered nation) the Act was occurring before regardless the con- of when to new trials passed. Act is issue occurred. Thus the duct at a case confronted with have not been We ap- prospective, in the sense that both tried after the Mojica's, which was like retroactive, trials, plies new to Act re- and here the passage of the ignores wrongful when the sense that The Act shows approach. quires a fresh few The Act creates occurred. conduct Congress intended to by terms that its own discrimination, focusing against new rules occurring af- regulate trials discrimination procedures and outlining instead example, For Sec- passed. was ter the Act This should to use new trials. remedies purposes “The of this Act provides: tion 3 Congres- student of persuade the honest * * * guidelines provide statutory are Act is not addressed intent that the [to] sional impact disparate adjudication conduct, for the rather to employer’s but administering of the tri- under title VII judges suits of federal conduct ** previously *.” Section 3 identifies the enacted civil of 1964 under als guidelines for one that creates statute as laws. It leaves no room won- “adjudication.” out a framework Section sets begin to these courts should use

der when dis- claims of intentional adjudicating for the Act’s new guidelines. No matter that Title VII.5 brought under crimination may outcomes: guidelines alter substantive “complaining (d)(1)(A) Paragraph defines clear, it congressional intent is “where [] person may bring party” as “a who & governs.” Aluminum Chemical Kaiser VII,” title iden- proceeding or under action 827, 837, 110 Bonjorno, Corp. qualification.6 future claims without tifying (1990); (a)(1) compensatory provides Paragraph Sullivan, 966 F.2d Gay damages an action punitive “[i]n Cir.1992). the Act Congress intended Since party under brought by complaining [42 trials, judicial presump- apply to new respondent against U.S.C. § 2000e-5] retroactivity against are irrele- tions for or intentional dis- engaged unlawful who when, here, pas- (b)(2) after explains vant as trial occurs Paragraph crimination.” By regime creating a new available sage punitive of the will be cases, respondent engaged adjudication only of discrimination “the where * * discriminatory practice malice expressed par- to hold its intent (c) de- Paragraph party either allows responsible judgments under concern- ties Section, paragraph's quota though Emphasis all applicable Title VII added in to 1981; 5. This cases, at 42 U.S.C. it coordi- § codified tions. by VII those offered Title remedies with nates § 1981.

H63 distinguishing unambiguously jury Congress, mand a without as ordered underlying however, Section timing claims. explore courts are not free to procedural and reme- 102 thus modifies retroactivity issues raised the new laws. remains race, color, religion, ment was a tice” when he or she “demonstrates without duct occurred. establishes claims. Section address of Proof plaining party ful conduct occurred. also motivated the element to establishes details at ification. Section 105 is entitled derlying effect without section to all future claimants without an action under [Title guage, es—without reference to the trials. The use future onstration illegal cedures dial Sections 104 and 105 of “complaining party” regime illegal practice, now. Section motivating directs courts tenses, unqualified by other regard and remedies to illegal, events. length shifting prove simple Disparate Impact before courts “unlawful adjudication regard even available Since the conduct was and since the Act “a in future Title VII Section 107 when of the but-for causation as the factor for practice.” must use in Title VII person the Act and remains sex or national though again VII],” addressing the 102 has (a discriminatory prior employment prac- employer when simple past burdens of future who defines a com- of Title other factors timing of un- provides any employ- the new conduct that This Section Cases,” prospective may bring claimant) “Burden defens- wrong- merely origin cases, qual- dem- con- also pro- lan- VII jurisdiction. Decorating terms. Sections 3 and 105 create pact That Act further looked to when the The Judicial mental cating whether the 1991 this act.” than state new two. derlying the suit (N.D.Ill.1991), tional these controversy” giving ^[310] dislocating on or lines for the specific example, enlarged 101-650 [the Act’s] are no more over suits,” category shall grant American In after guidelines effects of federal courts jurisdiction lawsuits Civil claims court, 310(a), enactment.” effects of a statute Improvements the date in the 28 U.S.C. where the court has ambiguous adjudication Rights of 310(c). will be bound to civil actions commenced litigating Section or in one trial rather than enacted the new took “shall “related” to a “case or example, jurisdiction occurred provided statute. federal Improvements underlying Pfauter supplemental of the enactment of F.Supp. Stat. place § Courts have not take effect These statements than the 1367; speaks in federal rather of Act of the conduct un- jurisdiction by three months that “section Although provides disparate to determine v. Freeman Pub.L. No. 5113-5114. conduct creating in similar the dislo- jurisdic- jurisdic- greater, original “guide- supple- upon im- updates the old causes administration of of language through The of Sections action, qualify would have this enough all their 107 would be simple language exempt if it wished adjudication of provisions prospectively to employers charged with discrimination af- But there is future Title VII claims. occurring ter its effective date for conduct expresses Congress’ unam- more—the Act words, the effective date. In other biguous Supreme certain intent to overrule purposes applying the critical of event narrowly construed exist- Court cases procedures the Act’s on trial is not Sections ing rights Congress laws. overrules civil conduct, allegedly wrongful but interpretations court of its laws often.7 date of the trial itself. Electric Co. 1976, General example, For in Gilbert, 125, 401, 429 U.S. 97 S.Ct. Any change procedure in trials 343, Title did not bar L.Ed.2d held that VII produce will different substantive results discriminating against changes employers in at least some cases. When such from Eskridge, Overriding Supreme four offers a list of Su- 7. See William N. decisions. Footnote Decisions, Statutory Interpretation Court preme Court cases overruled or modified (1991), analysis Yale L.J. 335 for data and Rights Act of 1991. why Congress how often and overrules court powers are counter-majoritarian workplace. Con- Courts’ in the pregnant women Congress part when Pregnancy Discrimi- in justified with the gress reacted PDA, as it was of a interpretation The like a court’s Act of 1978.8 does not nation called, clarify the definitions Section law, amended it amend the law to is free to that “discrimination provide VII to passage quoted Title It its did so will. include discrimina- of sex” would the basis the Constitu- sense and above. Common or related pregnancy on the basis tion that Con- require courts to assume tion 2000e(k). 42 U.S.C. medical conditions. It be says. what it gress means good PDA, longer nowas After the Gilbert suggest should sophistry to that Patterson acknowledged Supreme Court law. rights lingering civil have effect Shipbuilding and Newport News come, Congress years to cases for when Dry Dock v. EEOC: Co. disap- emphatically expressed its has so Congress, whether shall consider [W]e By overruling Pat- proval of that decision. Discrimina- enacting Pregnancy books, terson, it Congress erased from Act, specific only overturned the reconfigure the ad- acting prospectively v. Gil- holding in General Electric Co. pre-existing judication under sub- bert, rejected test of discrim- also but stantive laws. by the in that employed ination intent, Congress’ For more evidence of it believe did. case. We look no further than Section the Court need 2627, 669, 676, 2622, 103 S.Ct. 105(a) disparate proof on burdens of pertinent to the Most L.Ed.2d referred impact suits: “The demonstration rec- Newport News 1991 Civil (A)(ii) subparagraph shall be accor- ognized that when “overturned” on June dance with the law as existed rejected reasoning its future Gilbert concept respect of ‘alter- then, to power, has the cases. ” employment practice.’ On June native of a stat- interpretation a court’s overrule Court decided Wards have no demand that decision will ute and Atonio, Packing Cove Co. brought in future cases under the effect 733, shifting News, Newport 462 U.S. at 676- statute. disparate impact proof burdens 2627-2630. The lack of 103 S.Ct. at prove. make discrimination harder to to in the PDA shows any reference to Gilbert Cove, course, had “retroactive” of Wards Congress name a to that need not decision it—parties effect on intent; unambiguous such dis- express an previous conduct occurred under whose agreement is 28 U.S.C. sufficient. litigated relying on differ- 2000e(k). regime, and who required proof of than those ent burdens exists with the Civil The same situation 966 Luddington, See Cove. Wards Rights Act Consider of 1991. Patterson then, mean, that the F.2d at 228. Does this Union, 109 Credit McLean “the 4 before Covewas law on June Wards (1989), which law on June 5? Id. Of same” as the interpreted provide 1981 to U.S.C. § Congress mean What does course not. only for discrimina- common-law law as it contracts, says it restores “the when of and not the formation demotions, simply It that pro- on 4?” means firings, existed June or failures prospective no ef- Congress to have mote. overruled Patterson Wards Cove 101(b) If disparate impact of the Act: cases. Section fect future necessary to show further evidence were 1981], purposes For the term ‘make [§ Congress’ intent to abolish the burden includes the mak- and enforce contracts’ in future modification, scheme created Wards Cove ing, performance, and ter- trials, singled disap- contracts, the case is out enjoyment mination of and the benefits, terms, proved by “findings” twice in the privileges, name all and con- “purposes” introduce the Act. relationship. Sections that ditions of the contractual 95-555, at 8. Pub.L.No. 92 Stat. extreme, Congress prior Our decisions in Mozee

Suppose, in the v. Ameri Co., Marine following Congress “The can Commercial Service penned the law: (7th Cir.1992), and Luddington v. the framework courts is dissatisfied with Telephone Indiana Bell F.2d adjudicating rights civil developed have (7th Cir.1992), my are not at odds with 1981 and 2000e. claims under U.S.C. § "the views. Mozee addressed difficult task reasons, may any person who For these deciphering to what extent the Civil bring a claim under either of these laws Rights applicable case [was] [a] Rights do so before the Civil Claims will pending appeal during which on its Administration, by the Act constituted enactment." 963 931. Since "we No court read this which follows.” would language from the Act's not divine [could] hypothetical law to create two classes of Congress ap whether intended the Act to claimants, wrong- (complaining one class ply retroactively pending cases," id. at occurring ful acts the Act’s enact- after conflicting presump we examined the ment) newly bring claims to the consti- Congress applies tions on whether an act of commission, relegated to tuted the other retroactively. analysis Mozee framed its unsatisfactory developed by framework Congressional question intent around Rather, all new claims federal courts. appeals required whether the Act court go to the new Civil Claims would to order a new trial under the new rules spoken in Congress Administration. silence, offered the Act. The Act's cou similar terms at Section 3 of Civil pled judicial presumption against with a purposes of this Rights Act of 1991: “The retroactivity, * * * meant that the Act did not respond to recent deci- pending appeal. A to cases on con Supreme by expanding of the Court sions trary required us to find result would have rights scope of relevant civil statutes intended to provide adequate protection order vic- pre-Act trials, retroactively both to and to tims of discrimination.” Its intent to undo pre-Act present In the case I conduct.9 regime adjudicating rights the old civil would conclude that intended to claims could not be clearer. prospectively apply the Act to new trials. reasons, I hold af- For these Congress' in Since did not examine Act, any dates of the cases, give ter the effective us the tent as to new it does by Congress Mojica's decision the 1991 authority overruled to overturn verdict Rights Act will have no effect on the favor. adjudication of new civil claims. To again reviewing ap- Luddington, In way, by express point a different over- pending plication of the Act to a case ruling pro- certain appli- act is appeal, held that “the new we lawsuits, Congress spectively as to future only engaged in after the cable to conduct * * * expressed its intent to retroac- bind act, if at least effective dates tively any to dislocations in substantive brought the effective suit had been might occur under the new outcomes F.2d at 230-231. The reserva- date.” 966 regime. procedural and remedial The Su- critical, the comma is since Con- tion after preme day, cases had their and Court’s apply to suits gress intended the act to express did not its intent to over- Ludding- brought after the effective date. under the litigated turn cases and decided potential problem Mojica: poses ton one regime. Congress has created a old But brought and after her suit was both before has a statute regime. It authored in the form of the effective date of the exclusively if at the primarily complaint post-Act directed not amend- pre-Act and However, rights the Act is complaint. administration of our civil laws since ed judges, primarily procedures, and we must heed Con- the trial bur- federal about dens, to use in discrimination gress’ obvious intent to the Act to and remedies cases, not Luddington does bar new trials. subject same on remand that the Act on remand be to the laws refused applied thought the trial. Id. at 940. we the Title VII claims should in first

1166 Luddington, in this Contrary to our dicta puni- and compensatory post-Act claim disagreement with “register[] Moji- seems jury trial. Since and tive tri- And where new Court did.” Act was what after tried ca’s case was does, concerned, in Lud- the Act als are on its own governs her trial passed, words, "lay[ down a new rule dington 's requires no ] intent terms; Congressional * ** conduct, by estab- the future” effi- of promotes intent also Congress’ less. proof, procedures, of lishing new burdens judicial administration predictable cient and rights in civil remedies use after the and rights cases tried claims: of civil future rules of conduct few new It enacts procedures and reme- trials. the new Act use will concerned, not of discrimination Act will be acts dies; where tried before concerning treatment express Gannett’s Congress did not none retried because nothing in re- Lud- procedural Mojica. Consequently, apply the an intent to of disapprove adjudicat- a reason to retroactively previously dington furnishes gime today. suggest I the result ed cases.10 of stated that Luddington also “[w]hen disagree registered similar Supreme de- Court [Congress] ‘overrules’ recent other ment Court decisions disagreement registering it is cision Pro Benefit The Older Workers statutes. did; laying down it is the Court with what "The Con provided of 1990 Act tection conduct—ordinarily for the of a new rule that, of the a result decision finds gress Returning at 228. future.” 966 Employees Supreme Court Public of Act, however, I that Sections note Betts, 488 v. System Ohio Retirement of provide: and 3 Congress finds that— The necessary to re (1988),legislative action ^[******] store the original congressional intent Age amending the Discrimina passing (2) Supreme Court the decision of the ** *." Act of 1967 Employment Atonio, Packing Cove Wards Co. 104 Stat. 101-433 Pub.L.No. 2115, 104 L.Ed.2d S.Ct. 490 U.S. [109 Act of Rights Restoration (1990). The Civil (1989), scope and weakened the 733] provided that: pro- civil effectiveness of Federal tections. Congress finds that— The

[******] (1) certain aspects of recent decisions are— have purposes Supreme Court opinions Power L.Ed.2d 158] necessity” (2) ^[******] codify 401 U.S. (1971), and in other Su- “job related” enunciated concepts of [91 Griggs S.Ct. “business v. Duke broad unduly cation Amendments of the Age Discrimination Act VI of the Civil application of title narrowed or cast doubt Rehabilitation Rights Act of IX of the Edu- section 1964; and upon the title (2) necessary action is re- legislative prior preme to Wards Court decisions long-stand- consistent and Atonio, prior store the Packing Cove Co. interpretation and ing branch 2115, 104 executive L.Ed.2d 733] [109 broad, application of institution-wide ^[******] those laws as previously administered. 2, (1988). 28 102 Stat. Pub.L.No. 100-259 (4) respond to recent decisions of § to (11th 661, F.2d 666 Dugger, 904 by expanding the Lussier v. the language Cir.1990), part on this to relied rights statutes scope of relevant civil Congress intended the Restora- infer that 477, Airlines, Rights 10. Banas v. American before the Act's Act to cases tried 483 969 enactment, 1992), Taylor today's and South decision does not Cir. v. Western so that 1188, (7th Cir. holdings ern Ins. 966 F.2d 1199 affect our in those cases. Life 1992), application of the 1991 also involved the

H67 applies pre-enact- jury also to the Act’s offer of trials types of Act to reach certain in Title VII eases. ment conduct.11 ambig- were Congressional if intent Even present In this the simi- respect, case is uous, Rights 1991 Civil application of the McGuffy, v. to lar 954 F.2d 1337 Littlefield fair, because few to Gannett would be (7th Cir.1992). jury The in Littlefield problems by retroactive the usual raised McGuffy intentionally found that had dis- Moz- present. of new rules are application against criminated a woman possibility that expressly open left the ee black, boyfriend daughter were vio- provi- remedial procedural Act’s the Housing (FHA), 42 lation the Fair might apply pre-Act conduct. 963 to sions trial, U.S.C. 3613. Before the FHA was § 939. We indicated that F.2d at “[b]ecause punitive damages amended remove a to un- society’s valuation of a victim’s losses cap. McGuffy argued appeal on that the time, derstandably it does not changes over jury that at should have been instructed litigating to unfair force seem acts, the time of the his bad FHA contained statutory the more recent comply with punitive cap. damages rejected the We his Id. damages.” In changes regard to appeal, part parallel because a civil however, Luddington, we noted that (42 1982) exposed law U.S.C. § employers to subject unfair might be McGuffy uncapped liability for the same higher liabilities under the Act be- acts: an employers oppor- entitled to cause “are jury general entered a verdict for [T]he light care in tunity readjust their level of plaintiff compensa- and awarded both created the new environment tory allo- punitive without aspects 229. change.” 966 F.2d at Several cating specific amounts for violation of persuade me that is not Mojica’s case Housing Rights the Civil the Fair apply procedural and remedial unfair Act, or Illinois common law. Under pre-Act of the Act to Gannett’s provisions circumstances, injus- these no material conduct. * * *. tice was defendant worked First, Mojica had the same set “causes case, Id. today's jury ren In before and after the 1991 Civil of action” Harvis, against a on national (“the dered verdict Gannett Act. F.2d at 495 origin distinguishing discrimination without of a of action under elements cause VII”). post-Act pre-Act Title Title VII and identical to those under between the are grounds. Moji Thus verdict complaint Her amended allowed her unless quantifying an ca would stand under claim alternative basis Littlefield jury VII cases availability result of of a Title losses she suffered as a Gan- injustice on Gan By would a substantial alleged wrongful nett’s discrimination. wreak Household calculus, Lytle nett. See offering alternative Manufactur Inc., ing, S.Ct. largely 494 U.S. eliminated formalistic and use- 1335, 108 And Gannett L.Ed.2d less distinction between “common-law unjust argue cannot that it is to defend damages” quantifying Mojica’s formula for judge post-Act—and jury suits instead of a “equita- civil losses—available formula, pre-Act. attacking the Seventh Amendment without restitution” available ble major premise challenging a of case recognized losses were as losses be- Tompkins, Erie Railroad v. case, any given following In law and after fore case, 82 L.Ed. neither formu- and indeed enough (1938): "procedural" higher juries necessarily yield award. la requirements jury even cannot the alternate federal Gannett claim court a state-law “unfair” absent such where federal hears formula somehow Conner, Simler information, diversity. along all case when it knew (1963); argument This L.Ed.2d 691 illegal. discrimination was by Congress’ expressed Sec DeVargas Hanger-Silas intent as & Mason account of 11. Mason (10th Cir.1990), failed of the Restoration to take Westover, Theatres, Inc. v. Beacon HUGHES, Milligan Appellant, Carolyn the amount argued that It can also be on successful pay out money employers MATTHEWS, Individually, and P. James insignificant com- lawsuits is discrimination of General as Executive Officer Chief an- employers by incur

pared to the costs Apart- Properties, and Foothills Inc. trying to generally swering complaints and Inc.; Properties, ments; Foot- General rights laws. Since comply with the civil Apartments, Appellees. hills created no Rights Act the 1991 Civil discrimination, Gannett against norms 92-1620. No. claim, have had to answer would trial, pay her perhaps defend at Appeals, Court of United States risk Its or the Act. damages with without Eighth Circuit. have substantial sums would laying out Sept. 1992. Submitted regardless of how the present been hard Mojica's case. It would be applied to Decided Dec. the shift towards to show that for Gannett the end of trial higher perhaps award Mojica dif- treat have induced that discrimi- ferently, when Gannett knew many the costs illegal and so

nation was (such compli- norm as with that

associated answering complaints) were rela-

ance run, may

tively long In the fixed. complaints

encourage more civil prove or

making discrimination easier awards, higher

offering prospect employers

thereby increasing the costs of speculative,

like But these Gannett. only an-

empirical can be questions that Congress estab- over time. When

swered procedures provided

lished procedures take ef-

Act that those should upon it cast such

fect enactment

questions aside. Luddington, aptly

In we characterized court decisions that offered

circuit occurring job

damages for discrimination tentative

after contract formation “a away.” which Patterson

regime, swept pertinent today,

966 F.2d at 229. More Patterson,

however, my conclusion

Wards Cove and other cases overruled a tenta- also 1991 Civil were regime, swept away by Congress.

tive intent, expressed we

Since its respect it. I would affirm the

are bound to

judgment below.

Case Details

Case Name: Irene MOJICA, Plaintiff-Appellee, Cross-Appellant, v. GANNETT COMPANY, INC., Defendant-Appellant, Cross-Appellee

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Mar 4, 1993

Citation: 986 F.2d 1158

Docket Number: 91-3921, 92-1104

Court Abbreviation: 7th Cir.