Irene MOJICA, Plaintiff-Appellee/Cross-Appellant, v. GANNETT COMPANY, INC., owner of WGCI-FM Radio Station, Defendant-Appellant/Cross-Appellee.
Nos. 91-3921, 92-1104.
United States Court of Appeals, Seventh Circuit.
Argued June 2, 1993. Decided Sept. 27, 1993.
7 F.3d 552
In the instant case, testimony about the sick pay incident was conflicting. Fields himself testified that he wondered aloud how sick pay was paid but that before anyone had a chance to reply, Robin Merkel entered and Fields said “here‘s our answer now.” In addition, Fields referred to David Morrow, who was one of the other two employees present, as a bystander to the conversation. Morrow himself stated that he did not care about sick leave because he had already used all his sick days. The third employee involved in the discussion was not asked about it.
The A.L.J., however, credited Merkel‘s account that it was Morrow who told Fields to ask her about sick leave. Even accepting this as fact, the Board exaggerates when it characterizes the episode as a “protest.” Furthermore, the Board‘s description of Morrow as having actively participated in the conversation lacks support in the record.
In Evans, the evidence was clear that the complaining employee was speaking on behalf of others who were equally concerned about overtime pay. Here, by contrast, there was little, if any, conversation before Merkel entered, and one employee expressly disavowed an interest in the topic of sick pay. To the extent others were curious to hear Merkel‘s response, their interest was directed at clarifying and understanding the company‘s sick pay policy, not in complaining about it. Although Fields took offense at the answer he received, the evidence does not show that the others shared his reaction or joined in the objections he voiced to Merkel. Accordingly, the record contains inadequate support for a conclusion that Fields’ questioning of Merkel about sick pay constituted concerted activity.
As an additional rationale, the A.L.J. concluded that Morris discharged Fields in part for refusing to set up a group meeting, which infringed upon Fields’ “right to refrain” from protected, concerted activity. See
In view of our conclusion that Fields’ conduct on January 4 and 11, 1991, was not concerted, we need not address the question whether concerted activity motivated his discharge. See NLRB v. Ogle Protection Serv., Inc., 375 F.2d 497, 505 (6th Cir.) (employer may discharge employee “for any reason, whether it is just or not,” as long as it is not for protected activity), cert. denied, 389 U.S. 843, 88 S.Ct. 84, 19 L.Ed.2d 108 (1967).
IV.
For the foregoing reasons, enforcement of the decision and order of the Board is denied.
Armand L. Andry (argued), Oak Park, IL, for Irene Mojica.
Lawrence C. DiNardo (argued), Brenda H. Feis, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, IL, for Gannett Co., Inc.
Fred Foreman, U.S. Atty., Criminal Div., Chicago, IL, William P. Barr, Office of the U.S. Atty. Gen., Jacob M. Lewis, Marleigh D. Dover, Dept. of Justice, Civil Div., Appellate Section, Washington, DC, for amicus curiae U.S.
Jeffrey Cummings, Davis, Miner, Barnhill & Galland, Cynthia A. Wilson, Chicago Lawyers’ Committee, Chicago, IL, for amicus curiae Chicago Lawyers’ Committee for Civil Rights Under Law, Inc.
Before BAUER, Chief Judge, and CUMMINGS, CUDAHY, POSNER, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION, KANNE, and ROVNER, Circuit Judges.
MANION, Circuit Judge.
Irene Mojica, an Hispanic female, worked the “graveyard” shift as the overnight disc jockey at a popular Chicago radio station, WGCI-FM, owned by Gannett Company, Inc. In July 1990 she sued Gannett claiming, among other things, sex and national origin discrimination under
I. Facts
WGCI-FM is a popular Chicago radio station with programming geared for a black audience. To attract the maximum number of possible listeners, WGCI-FM separates its programming into six air shifts: 1:00am-5:00am (overnight); 5:00am-9:00am (morning drive); 9:00am-2:00pm (mid-day); 2:00pm-6:00pm (afternoon drive); 6:00pm-10:00pm (evening shift); and 10:00pm-1:00am (“quiet storm“). The format for each shift differs depending upon the presumed tastes of expected listeners. For instance, the morning and afternoon drive-time shifts—which attract by far the largest audiences—involve the chatter of the disc jockeys, along with some music, news, and traffic information. The other shifts are music-oriented, with different musical sounds appropriate to the pace and mood of the time of day.
Gannett hired Mojica in 1979, and she held several positions with WGCI-FM and its predecessor, WVON-AM. In January 1987, Mojica became the full-time overnight disc jockey at WGCI-FM. The overnight shift attracted the smallest listening audience and Mojica was paid less than the other disc jockeys at the station. She sought promotion into one of the more lucrative time slots. Between the time Mojica first became the full-time overnight disc jockey and the time she filed suit, five positions became available in non-overnight shifts at WGCI-FM. Four of those positions were filled by black disc jockeys, and one position—the “quiet storm” position which became available in January 1990—was filled by an Hispanic woman, Anna “Coco” Cortez. Mojica remained stuck in the overnight shift.
On July 6, 1990, Mojica filed suit against Gannett in the district court, alleging that she was paid less than male disc jockeys in violation of the Equal Pay Act (
Two weeks later, the district court conducted the trial. All of Mojica‘s claims were tried to a jury. Mojica presented evidence that while she was the overnight disc jockey, five disc jockey positions became available in more lucrative shifts. She applied for each position but the station did not promote her. To prove that the failures to promote were motivated by discriminatory intent, Mojica introduced evidence that she was a popular disc jockey. She also introduced the testimony of Anna “Coco” Cortez, an Hispanic female disc jockey who was hired into one of the positions for which Mojica was passed over. Cortez testified that she was not given the salary which the station promised, and she eventually left her job because of that. Finally, and significantly, Mojica testified that in the winter of 1986, the station‘s general manager, Marv Dyson, told her that he would not assign her to a non-overnight shift because she was not “a black male.” He denied ever making that comment.
The district court gave the jury a combined instruction on Mojica‘s national origin claims under section 1981 and Title VII. The jury returned a verdict in favor of Mojica on this combined national origin claim, and awarded her $35,000 in compensatory dam-
II. Analysis
In making its decision to apply the new Act retroactively, the district court faced a somewhat uncharted course. Congress had made no definitive statement in the text of the new Act as to whether it should apply retroactively. See Mozee v. Am. Commer. Marine Serv. Co., 963 F.2d 929, 932 (7th Cir.), cert. denied, 506 U.S. 872, 113 S.Ct. 207, 121 L.Ed.2d 148 (1992) (“whether Congress intended prospective or retroactive application of the 1991 Civil Rights Act cannot be deciphered from either the language of the statute or from the legislative history.“) Without congressional guidance, the district court was forced to resolve the issue of retroactivity based on existing judicial precedent. But two distinct lines of cases emanated from the Supreme Court of the United States. One line of cases endorsed a presumption in favor of retroactive application unless the statute included a clear legislative statement to the contrary. See Bradley v. Sch. Bd., 416 U.S. 696, 711-712, 94 S.Ct. 2006, 2016-17, 40 L.Ed.2d 476 (1974); Thorpe v. Hous. Auth. of Durham, 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969). A second line of cases rejected retroactivity, and observed a presumption favoring prospective application of newly-enacted statutes. See cases cited in Justice Scalia‘s concurrence in Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 855, 110 S.Ct. 1570, 1586, 108 L.Ed.2d 842 (1990). Upon reaching this fork in the road, the district court chose the Bradley-Thorpe path and applied the Civil Rights Act of 1991 retroactively.
In the time since this case was tried, this court has addressed and resolved the conflicting Supreme Court precedent on the issue of retroactivity in Mozee and Luddington v. Indiana Bell Tel. Co., 966 F.2d 225 (7th Cir. 1992). Both Mozee and Luddington concerned the applicability of the Civil Rights Act of 1991 to cases which were pending on appeal when the new Act became effective. In Mozee, we extensively discussed the prevailing precedent and concluded that “the Supreme Court has left us with two seemingly contradictory lines of cases....” Mozee, 963 F.2d at 935. We resolved this contradiction by establishing a presumption against retroactive application of newly-enacted statutes, stating the general rule that “statutory provisions impacting substantive rights and obligations will not be retroactively applied.” Id. at 936. We reasoned that “the better and more fair rule is to hold parties accountable for only those acts that were in violation of the law at the time the acts were performed.” Id. In Luddington, we reaffirmed the presumption against retroactivity: “[t]he idea that the law should confine its prohibitions and regulations to future conduct, so that persons subject to the law can conform their conduct to it and thus avoid being punished ... is a component of the traditional conception of the ‘rule of law.‘” Luddington, 966 F.2d at 227-28. We specifically held that “the [Civil Rights Act of 1991] is applicable only to conduct engaged in after the effective dates (plural because several sanctions carry different effective dates) in the Act, at least if the suit had been brought before the effective date.” Id. at 229-30.1
We decided Mozee in May of 1992 and Luddington one month later.2 The case now
On rehearing, this case presents several issues. First, because the full court may decide to overrule previous cases, we must decide, whether the presumption against retroactivity established in Mozee and Luddington should remain the law of this Circuit. Second, we must determine whether this presumption against retroactivity applies to cases which were pending in the trial court when the new Act passed into law. Third, we must apply our decision on retroactivity to the case before us. Finally, we must settle the other issues—unrelated to retroactivity—raised in this appeal and cross-appeal.
A. Retroactivity.
The Supreme Court has granted certiorari in a case involving the issue of retroactivity. Landgraf v. USI Film Products, 968 F.2d 427 (5th Cir.1992), cert. granted, 507 U.S. 908, 113 S.Ct. 1250, 122 L.Ed.2d 649 (1993). The rule stated in that case eventually will control the issue in the federal courts.4 In the meantime, this court has already articulated a general rule concerning retroactivity in Mozee and Luddington.5 When sitting en banc, the full court has the power to change general rules stated in previous cases. See Varhol v. Nat‘l R.R. Passenger Corp., 909 F.2d 1557, 1560 (7th Cir.1990). As a practical matter, therefore, the first issue before us is whether the presumption against retroactivity should remain the law of this Circuit.
In his concurrence in Kaiser, Justice Scalia discusses the history of Supreme Court precedent relating to retroactivity and expounds the policies against retroactive application of newly-enacted statutes. Kaiser, 494 U.S. at 840-59, 110 S.Ct. at 1579-88. At the core of his discussion is the inescapable reality that retroactive application “is contrary to fundamental notions of justice....” Id. 494 U.S. at 855, 110 S.Ct. at 1586. This is so because retroactive application often penalizes conduct which was acceptable, at least under the rule of law, when the conduct occurred. General retroactive application diminishes one‘s ability to conform conduct to the boundaries imposed by law. This does not mean that Congress is prohibited from re-
In Mozee and Luddington we embraced Justice Scalia‘s conclusions from Kaiser. We see no reason to overturn those decisions. The weight of history and tradition, as well as considerations of fairness, compel us to observe a presumption against retroactive application of newly-enacted statutes. We need not repeat the reasoning displayed in Mozee and Luddington. Those cases remain the law of this Circuit, and they stand independently in their precedential value.
B. Mozee, Luddington And This Case.
The historical reason for applying statutes prospectively is to advance “[t]he principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place....” Kaiser, 494 U.S. at 855, 110 S.Ct. at 1586. Therefore, courts should look to the time of the conduct giving rise to the claim to determine the statute‘s applicability. Simply put, if the conduct took place before the statute‘s enactment, it is not covered; if after, it is covered. In Luddington we followed this principle, holding that “the [Civil Rights Act of 1991] is applicable only to conduct engaged in after the effective dates ... at least if the suit had been brought before the effective date.” Luddington, 966 F.2d at 229-30 (emphasis added).
Mojica filed her lawsuit on July 6, 1990. The lawsuit necessarily followed in time the conduct upon which it was based; indeed, all of the alleged failures to promote occurred in 1989 and 1990. The new Act became law in November of 1991. That Mojica later amended her complaint to assert the new law does not change the fact that the conduct occurred (and the lawsuit was filed) before the effective dates. Under Mozee and Luddington, because the conduct giving rise to the claim occurred before the new Act became effective, Gannett is not liable under the new law. Gannett is potentially liable only under the civil rights laws in effect at the time it failed to promote Mojica.
In his dissent from the decision to rehear en banc, Judge Cummings took the position that the presumption against retroactivity established in Mozee and Luddington did not apply to this case. First, he made a distinction between our previous cases and this one: Mozee and Luddington were pending on appeal but this case was pending before the trial court when the new Act passed into law. Next, he discerned that Congress intended the new Act to apply to trials taking place after the law‘s passage, regardless of when the conduct giving rise to the claim took place. “[t]he Act is not addressed to employer‘s conduct, but rather to the conduct of federal judges administering trials under previously enacted civil rights laws.” Mojica, 986 F.2d at 1162.
But this reasoning assumes that the trial, instead of the time of the alleged discriminatory conduct, is the temporal event which controls the application of the law. This assumption contradicts the holdings of Mozee and Luddington that the time of the conduct controls liability. It also ignores the reasoning behind those cases—that it would be “unfair to make persons accountable for acts that did not violate statutory laws when they were performed.” Mozee, 963 F.2d at 939; accord Luddington, 966 F.2d at 228. Under Judge Cummings’ approach, Gannett could be liable for an alleged discriminatory failure to promote under section 1981, even though the law (section 1981) in effect at the time of the conduct did not prohibit such alleged discrimination. See Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989) (former section 1981 excluded claims based on failure to promote or transfer an employee, unless the “promotion rises to a level of an opportunity for a new and distinct relationship between the
In theory, a statute may include certain procedural or damage provisions which do not impact substantive rights, and therefore should apply to trials taking place after enactment. See Mozee, 963 F.2d at 939 (“it is arguable that courts should apply the procedural and damage provisions in effect at the time of the trial.“); Luddington, 966 F.2d at 228 (“[p]rocedural innovations not likely to bias a decision systematically in favor of one litigant rather than his opponent can, without serious affront to the values crystallized in the phrase ‘rule of law,’ be applied to cases pending when the innovations were adopted....“). Indeed, courts are responsible to faithfully apply laws as Congress drafted them; if Congress intended certain non-substantive provisions of a law to apply to pending trials, then courts should so apply them. See Ex parte Collett, 337 U.S. 55, 71, 69 S.Ct. 944, 952-53, 93 L.Ed. 1207 (1949) (new rule defining forum non conveniens); Bonet v. Texas Co., 308 U.S. 463, 467, 60 S.Ct. 349, 351-52, 84 L.Ed. 401 (1940) (new method of enforcing awards). But this case implicates only two provisions relating to procedure and damages, neither of which should have been applied at the trial. First, the district court allowed the Title VII claims to be tried to the jury, which was not allowed under the former Title VII but is permitted under the new Act. Second, the jury awarded compensatory and punitive damages, which were not recoverable under the previous Title VII.
To allow a jury trial for a case governed substantively by the former Title VII is to ignore the equitable nature of that provision. The amended Title VII allows for jury trials, but that is because of the legal remedies—including compensatory and punitive damages—available under the new law.7 The previous Title VII allows only equitable remedies, and as long as that substantive law governs a case, the plaintiff has no right to trial by jury. See Williamson v. Handy Button Mach. Co., 817 F.2d 1290, 1293 (7th Cir.1987). Nor does the right to compensatory and punitive damages conferred by the new Title VII apply retroactively. As we stated in Luddington, “[t]he amount of care that individuals and firms take to avoid subjecting themselves to liability whether civil or criminal is a function of the severity of the sanction, and when the severity is increased they are entitled to an opportunity to readjust their level of care in light of the new environment created by the change.” Luddington, 966 F.2d at 229.
In sum, the district court erred by applying the new Act to this case. Because Gannett‘s alleged failure to promote Mojica—the conduct giving rise to her claim—took place before the enactment of the new Act, the former civil rights laws govern her case. To the extent some provisions of the new Act may apply to pending trials, no such provisions are implicated in this appeal.8
At trial Mojica alleged that Gannett violated federal laws by paying her less than other disc jockeys, by sexually harassing her, and by refusing to promote her because of her sex, her national origin, and in retaliation for complaining about discrimination. The jury found in Mojica‘s favor only on the national origin discrimination claim. Mojica does not appeal the jury‘s findings as to the other claims. The question before us, then, is whether the improper application of the new Act requires reversal of the jury‘s finding of national origin discrimination.
Mojica actually made two national origin discrimination claims: one under Title VII and one under section 1981. The court provided the jury with a combined instruction on that claim, and the jury returned one verdict: that Gannett engaged in national origin discrimination. The jury did not distinguish the statutory basis of the verdict. Therefore it is impossible to know to what extent the jury assessed liability under Title VII as opposed to section 1981.
There are two problems with the jury‘s combined verdict. First, the jury should not have been allowed to consider the section 1981 claim. In Patterson, 491 U.S. at 184-86, 109 S.Ct. at 2377, the Supreme Court held that the former section 1981—the law that governs this case—excluded claims based on the failure to promote or transfer an employee, unless the “promotion rises to the level of an opportunity for a new and distinct relation between the employee and employer....” The amended section 1981 eliminated this requirement, effectively overruling Patterson. See Harriston v. Chicago Tribune, 992 F.2d 697, 702 n. 3 (7th Cir.1993). But Mojica‘s case should have been governed by the former law. Mojica presents no facts showing that the promotions to the more lucrative time shifts would have involved new and distinct relations with Gannett. See id. at 702. By allowing Mojica to proceed under the new Act, the district court essentially allowed her to proceed with a new claim which did not exist at the time the challenged conduct occurred.
The second problem with the jury‘s verdict is that under the former law, the jury should not have been allowed to consider Mojica‘s Title VII claims. True, under the former law the jury was allowed to make factual findings if Title VII claims were tried with section 1981 claims. See Handy Button, 817 F.2d at 1293. But we have already held that the jury should not have considered the section 1981 claims in the first place. Therefore the jury‘s finding has no force. Even if we were to defer to the jury‘s factual finding of national origin discrimination, it would be impossible to reconcile the jury‘s damage award with the former Title VII. Indeed, the jury awarded $35,000 in “compensatory damages.” The former Title VII allows recovery only for back pay and provides other equitable remedies. There is no way to determine at this point what portion of the jury‘s $35,000 damage award was meant to compensate for back pay.
The verdict is beyond rescue. This case must be remanded so that the district court can consider the Title VII discrimination claim. We decline to remand the section 1981 claim. Mojica offers no facts indicating that the promotions involved the opportunity to enter into a new and distinct contractual relationship.
D. Other Arguments.
1. Insufficiency of the evidence.
Under any version of the civil rights laws the plaintiff must prove discrimination. If Mojica did not prove discrimination at the first trial, the district court‘s failure to apply the proper civil rights laws would not matter. There would be no reason to remand to give Mojica a second chance to prove discrimination. Gannett argues that the evidence was insufficient to support the jury‘s finding of discrimination. If there was no evidence of discrimination presented at the trial, there is no reason to remand; this case would be over. Therefore, it is necessary to address Gannett‘s insufficiency argument.
In any discrimination case, the plaintiff bears the ultimate burden to prove, by a preponderance of the evidence, that his employment was adversely affected by his protected class status. Kizer v. Children‘s Learning Center, 962 F.2d 608, 611 (7th Cir.1992); Oxman v. WLS-TV, 846 F.2d 448, 452 (7th Cir.1988). The plaintiff can meet this burden either by presenting direct evidence of discrimination, Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985), or by successfully navigating the course of shifting burdens authorized in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See also St. Mary‘s Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). But once the plaintiff prevails before a jury, the method of proof becomes extraneous. United States Postal Serv. v. Aikens, 460 U.S. 711, 715-17, 103 S.Ct. 1478, 1481-83, 75 L.Ed.2d 403 (1983); Mathewson v. National Automatic Tool Co., Inc., 807 F.2d 87, 90 (7th Cir.1986). A district court passing on a motion for j.n.o.v. simply asks whether the substantial evidence supports the jury‘s finding of discrimination. Id. We review de novo the district court‘s decision. Id.
Mojica presented evidence of discrimination at the original trial by testifying that Marv Dyson, the station general manager, told her in 1986 that she would not be promoted into a more lucrative shift because she was not “a black male.” She also testified that when she told her other superiors of Dyson‘s comment, they reacted as if Dyson had foolishly revealed a guarded company secret. One even responded: “He said that to you? He is not supposed to say that. You could charge him with discrimination.” Gannett never objected to this testimony. Mojica also introduced evidence that she was a popular disc jockey and that the station had failed to pay another Hispanic woman disc jockey the amount that they had promised her. The district court found that the evidence was sufficient to support the finding of discrimination.
To determine if there was substantial evidence, we must ascertain “whether the evidence presented, combined with all reasonable inferences that may be drawn from it, is sufficient to support the verdict when viewed in the light most favorable to the party winning the verdict.” Mathewson, 807 F.2d at 90. We do not make credibility determinations; we leave that to the jury. Id. The jury could have believed Mojica‘s testimony about Marv Dyson‘s statement. If they believed that testimony, as well as Mojica‘s other testimony about how the other station supervisors reacted to the statement, the jury could have reasonably inferred that the radio station had a policy against hiring Hispanic females into prime-time disc jockey positions. Gannett never made a bona fide occupational qualification defense; it never argued that being a black male was a necessary qualification for a prime time disc jockey at a radio station with programming aimed at a black audience. Gannett argues simply that Marv Dyson never made the statement. But the jury could have believed Mojica. Because we conclude that the verdict is supported, we need not comment on any of the other evidence Mojica relied on to prove discrimination.
2. Mojica‘s cross-appeal.
Mojica cross-appeals, arguing that the district court incorrectly overturned the jury‘s punitive damages award. The district court determined that there was insufficient evidence of malice to support the award of punitive damages. We agree. But in accordance with our decision on retroactivity, we affirm the district court‘s decision to strike punitive damages because under the former Title VII—which applies to this case—Mojica is not entitled to punitive damages.
III. Conclusion
The district court erred by applying the Civil Rights Act of 1991 retroactively to this case. We reverse the jury‘s verdict and remand for a bench trial solely on the issue of whether Gannett committed national origin discrimination under the former Title VII. If so, the district court should award appropriate damages.
REVERSED AND REMANDED.
EASTERBROOK, Circuit Judge, with whom BAUER, Chief Judge, joins, concurring.
Our case is governed by the venerable rule that substantive changes in the law apply prospectively unless Congress expressly says otherwise. Bowen v. Georgetown University Hospital, 488 U.S. 204, 208-09, 109 S.Ct. 468, 471-72, 102 L.Ed.2d 493 (1988); Bennett v. New Jersey, 470 U.S. 632, 639-40, 105 S.Ct. 1555, 1559-61, 84 L.Ed.2d 572 (1985). United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 2 L.Ed. 49 (1801). Congress did not say otherwise expressly or even by clear implication, and I therefore join the majority‘s opinion.
Judge Cummings’ dissenting opinion, rejecting the rationale of Reynolds v. Martin, 985 F.2d 470, 473-74 (9th Cir.1993), concedes that Congress did not make an explicit decision. What then entitles Mojica to the benefits of the Civil Rights Act of 1991? The answer, according to the dissent, is that Congress did not change the law. It simply “overruled” some maverick decisions, including Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), restoring the law to its true state. Because “Gannett‘s conduct was illegal under
Committee reports and articles in law reviews often speak of Congress “overruling” the Supreme Court, but like many a term chosen for rhetorical rather than analytical purposes the usage is ambiguous. Does it mean “The Supreme Court misunderstood the statute in force when it acted“? or does it mean “The legal rule the Supreme Court found in the existing statute is not the rule we prefer“? The former implies that the “overruling” statute regulates events that occurred before its enactment, for the new law ensures continuing operation of a rule that has been on the books all along. The latter implies prospective application, just like any other change in the law. Congress often concludes that existing rules are inadequate and provides new ones that it thinks superior. That the inadequacies in the existing statutes have been revealed by judicial decisions, rather than by the plaints of lobbyists, does not imply that a revision in the text of the United States Code is anything other than a spanking new rule of law.
Patterson and the other decisions “overruled” by the 1991 Act interpreted statutes dating as far back as the Civil Rights Act of 1866. When rejecting the result of Patterson, Congress and the President did not offer deeper insight into the text or structure of the 1866 Act, which does not speak to promotions—indeed, scarcely speaks to private conduct. Until 1968 judges uniformly understood the 1866 Act as limited to state action—requiring states to offer the same legal remedies to all citizens (so that black and white citizens had identical capacity to form and enforce contracts), but not requiring private parties to make contracts on particular terms, or at all. See The Civil Rights Cases, 109 U.S. 3, 16-17, 3 S.Ct. 18, 24-26, 27 L.Ed. 835 (1883); Corrigan v. Buckley, 271 U.S. 323, 331, 46 S.Ct. 521, 524, 70 L.Ed. 969 (1926); Hurd v. Hodge, 334 U.S. 24, 31, 68 S.Ct. 847, 851, 92 L.Ed. 1187 (1948). Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968), gave the part of the 1866 Act that now appears in
After Runyon held that § 1981 applies to private and public contracts alike, intermediate courts had to decide what this means in practice. When asking questions such as “Does a failure to promote an employee because of that employee‘s sex violate § 1981?“, federal judges no longer returned to the materials from 1866. Instead they asked about the reasoning of Jones and Runyon. How far had the Supreme Court gone? What were the Justices likely to instruct them to do next? Neither Jones nor Runyon dealt with promotions or discharges; indeed, neither dealt with discrimination on account of sex or national origin. Several courts of appeals held after Runyon that a failure to promote an employee because of that person‘s sex was actionable; the fourth circuit disagreed. 805 F.2d 1143 (1986). Patterson became a cause célèbre because, after granting certiorari to resolve the conflict and hearing oral argument, the Court requested briefs and reargument on the question whether Runyon should be reconsidered. 485 U.S. 617, 108 S.Ct. 1419, 99 L.Ed.2d 879 (1988). Because Runyon depended on Jones, the order called into question the application of the whole 1866 Act to private action. In the event, the Court overruled neither Runyon nor Jones—but it also declined to extend them. It said that Runyon itself was as far as it was willing to take the holding of Jones. Section 1981 establishes equal rights to “make and enforce” contracts; adopting rules for modifying and ending contracts is a legislative task, the Court concluded.
Congress accepted the invitation but encountered problems in the details. It is easy to say that discriminatory failure to promote should be actionable, but does this mean that employees must use administrative remedies (as under Title VII), or may they proceed straight to court as under the 1866 Act? What statute of limitations will apply—the short federal one under Title VII, or the longer state rules under § 1988? What remedies are available—back pay as under Title VII, or compensatory and punitive damages? What price can the opponents of any change extract? The 1991 Act contains compromises on many topics. The compromises were essential to its enactment. Both the nature of the question before the Court in Patterson and the nature of the legislative response show that Congress did not “overrule” Patterson in the sense of concluding that Patterson misunderstood the Civil Rights Act of 1866. The true meaning of that Act was not even before the Court (unless it was prepared to revisit Jones); and once we pass from interpreting the law to interpreting prior judicial decisions, there is no easy answer to the question whether and how far a judge should press cases such as Jones and Runyon.
Nothing that Congress enacted offers a superior reading of the 1866 Act. What some Senators and Representatives may have thought about the original meaning of § 1981 does not matter; only what the political branches of the government agreed on is law. Congress and the President did not agree that The Civil Rights Cases and all other opinions interpreting that statute during the first 102 years of its existence were wrongly decided and that Charles Fairman got his history wrong, that the serious debate in Jones and Runyon about the meaning of the 1866 Act and the scope of stare decisis was all pointless. Congress and the Presi-
Revisiting the merits of judicial decisions is not part of a legislator‘s job description. Congress legislates, writing laws rather than rewriting history. The political branches of government altered the text of § 1981 (and several other laws) in order to alter legal obligations and penalties. Cf. Robertson v. Seattle Audubon Soc‘y, 503 U.S. 429, 112 S.Ct. 1407, 118 L.Ed.2d 73 (1992). The inability of legislative and executive branches to agree whether these new rules and penalties apply to employment decisions predating November 21, 1991, bucks the question to the judicial branch. And our branch of government has a rule governing such situations, a rule forged early in the nation‘s constitutional history and applied, with rare exceptions, for 200 years.
The difference between legislative and judicial roles in government supplies the answer to the dissenting opinion‘s observation that “[i]f we can tolerate retroactive application of court decisions, we should be able to tolerate retroactive application of statutes that overrule those decisions” (dissent at 567). Patterson was not “retroactive” in any interesting sense; it did not overrule any earlier opinion. It simply declined to extend Runyon. This meant, of course, that courts taking § 1981 for all it could be worth had not read their tea leaves correctly, but resolving a conflict among the circuits in a particular fashion does not effect a retroactive “change” in the law. There was only one law, the 1866 Act, although there were divergent views about its meaning. So far as inferior courts within the federal judiciary are concerned, Patterson gives the one right meaning of § 1981, as it stood between 1866 and 1991.
Litigants adversely affected by Patterson would not care about the difference between a failure to extend Runyon and a retroactive overruling of Runyon, but the judicial task is to carry out the law, not what people hope the law is. Patterson interpreted a statute that had been on the books for 123 years. Courts apply their interpretations to pending cases because the rule they are interpreting predates the parties’ acts. Judicial interpretations “change the law” from (losing) litigants’ perspective, but from the judicial perspective the process of interpretation aims at getting as close as one can to a meaning that predates the litigation. See Harper v. Virginia Dep‘t of Taxation, 509 U.S. 86, 113 S.Ct. 2510, 2516-18, 125 L.Ed.2d 74 (1993); James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 111 S.Ct. 2439, 2442-45, 115 L.Ed.2d 481 (1991); American Trucking Ass‘ns, Inc. v. Smith, 496 U.S. 167, 201, 110 S.Ct. 2323, 2343, 110 L.Ed.2d 148 (1990) (Scalia, J., concurring), id. at 209-24, 110 S.Ct. at 2347-56 (Stevens, J., joined by Brennan, Marshall & Blackmun, JJ., dissenting).
Today we apply the 1866 Act to events that occurred while its original text was in force. Congress concluded that a different rule would best serve the nation in the future. Our part is to apply each statute to decisions taken during its reign.
CUDAHY, Circuit Judge, with whom ILANA DIAMOND ROVNER, Circuit Judge, joins, dissenting.
I am pleased to join Judge Cummings’ eloquent and extraordinarily perceptive dissent. He has succeeded in introducing reality into what is so frequently a superficial and wooden approach to applying the Civil Rights Act of 1991. Even though Mozee and Luddington are now the law of this Circuit, I agree with Judge Cummings that, despite those cases, or perhaps because of them, the 1991 Act properly applies to Mojica‘s post-Act trial.
I, of course, emphatically dissented as a panel member from the court‘s refusal in Mozee to apply the 1991 Act to pre-Act and pre-Patterson conduct. The result in that case I regarded as incorrect and unjust. It seems to me that the manipulation of musty maxims and presumptions of retroactivity and prospectivity has managed to leverage the fleeting months when Patterson was on the books into a much longer and continuing denial of the full protection of the civil rights laws. The manifest intent of Congress, as well documented by Judge Cummings, was to obliterate as expeditiously as possible Patterson and a number of other Supreme Court decisions that narrowed and limited long-standing protections of the civil rights laws. As Judge Cummings points out, all parties have been on full notice of the substance of those protections for a long time; they certainly do not come as a complete surprise to Gannett or other defendants. The Act, insofar as I am concerned here, merely restored the law promptly to the course it had followed for years. It seems to me wholly unrealistic to believe that Congress wanted to endow Patterson and similar cases with some sort of life after death. Hence, I cannot countenance their continued application long after they have been legislatively erased from the books. I, therefore, respectfully dissent.
The Supreme Court of the United States has granted certiorari in two cases that will address the retroactivity of the Civil Rights Act of 1991. It is highly likely that the Court will address the fundamental dichotomy presented by the conflicting holdings in Bowen v. Georgetown University Hospital, 488 U.S. 204 (1988) and Bradley v. Sch. Bd., 416 U.S. 696 (1974). Once that basic issue is resolved, the more particular issues of retroactivity will be subject to relatively easy judicial resolution. Therefore, I believe it is a significant judicial diseconomy for this court to proceed to judgment in this en banc proceeding until that basic issue is resolved. I believe that the most appropriate course would have been to hold this case until after the Supreme Court renders its opinion.
If, despite the presently existing ambiguous precedent on retroactivity, we must deal with the merits at this time, I would hold that the Act is retroactive. Consequently, the prior panel holdings in Luddington v. Indiana Bell Telephone Co., 966 F.2d 225 (7th Cir.1992), and Mozee v. American Commercial Marine Service Co., 963 F.2d 929 (7th Cir.1992), ought to be overruled. In my view, even if we indulge in the general presumption that statutes are to be applied in a prospective fashion, that presumption is nullified in this case by the explicit language of the statute. Whatever the motivations of Congress in casting the statute in these terms, we must accept its manifest intent.
Notes
If a complaining party seeks compensatory or punitive damages under this section—(1) any party may demand a trial by jury; and (2) the court shall not inform the jury of the limitations described in subsection (b)(3). See
it would be naive to suppose that Congress sits to review the interpretive soundness of judicial decisions. Congress is not a judicial body, let alone a body of academic commentators on judicial decisions. When it ‘overrules’ a Supreme Court decision it is not registering disagreement with the merits of what the Court did; it is laying down a new rule of conduct—ordinarily for the future. Section 1981 dates back to 1866. It is as unlikely that Congress was attempting to restore section 1981 to the understanding of its framers as that Patterson in cutting back the earlier decisions had restored the statute to its original understanding. The new civil rights act reflects contemporary policy and politics, rather than a dispute between Congress and the Supreme Court over the mechanics of interpretation. Luddington, 966 F.2d at 228. We stand by this statement from Luddington. Judge Easterbrook has issued a concurring opinion which builds on Luddington‘s reasoning and develops the law in this area. We agree with the view stated in his concurrence—certainly, the concurrence is not a “superficial and wooden approach” and it does represent “reality.” See Cudahy, J. dissent at 569. Like Judge Easterbrook, we follow the rule stated in Luddington—that Congress does not sit “to review the interpretive soundness of judicial decisions.” Luddington, 966 F.2d at 228. What Judge Cudahy calls “manipulation of musty maxims” we prefer to call the law of this circuit. See Cudahy, J. dissent at 569.