The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Judy Daniels ("Daniels") brings this action charging that because of
her race (she is a black woman) Lord & Taylor unlawfully (1) refused to
consider her for advancement, (2) disciplined her and (3) ultimately
fired her. Lord & Taylor has moved to strike Daniels' jury demand. For
the reasons stated in this memorandum opinion and order that motion is
granted in part and denied in part.
Daniels initially brought this action under Title VII of the Civil
Rights Act of 1964 ("Title VII," 42 U.S.C. § 2000e to 2000e-17).
After Lord & Taylor moved to strike her jury demand Daniels moved to file
a second Amended Complaint (the "Complaint"), based on the same facts but
adding a cause of action under 42 U.S.C. § 1981 ("Section 1981").
Lord & Taylor has persisted in its motion.
Lord & Taylor's motion to strike is well founded as to Daniels' Title
VII claim. There is clearly no right to a jury trial for such actions.
Grayson v. Wickes Corp., 607 F.2d 1194 (7th Cir. 1979); see Lehman v.
Nakshian, 453 U.S. 156, 167, 101 S.Ct. 2698, 2705, 69 L.Ed.2d 548 (1981)
(reasoning from the stated absence of jury trials in Title VII cases to a
like conclusion as to the Age Discrimination in Employment Act).
Whether Daniels is entitled to a jury trial on her Section 1981 claim
poses a somewhat more difficult group of problems. Two Courts of Appeal
that have addressed the issue recently held plaintiffs entitled to a jury
trial for Section 1981 claims involving employment discrimination. Setser
v. Novack Investment Co., 638 F.2d 1137, 1139-42 (8th Cir. 1981); Moore
v. Sun Oil Co., 636 F.2d 154, 157 (6th Cir. 1980). Moore, however, held
the jury would determine liability alone, while the backpay claim was
essentially an equitable remedy to be calculated by the court. Setser
viewed the backpay claim too as one for the jury under the circumstances
there. See, Setser, denial of cert., 454 U.S. 1064, 102 S.Ct. 615, 70
L.Ed.2d 601 (1981) (opinion of Stevens, J.).
But this Court need not address itself at this time to the issue on
which Moore and Setser diverged. Under Fed.R.Civ.P. ("Rule") 38(c) a
party can properly demand a jury trial for all issues so "triable of
right." This Court's determination as to the nature of Daniels' claim and
remedy — precisely what issues are subject to the demand as a
matter of right — await the further development of this action.
Lord & Taylor finally points out (1) Daniels did not allege a Section
1981 action until she filed the Complaint and (2) it was filed after this
motion to strike. Lord & Taylor argues Daniels should not be permitted to
receive a jury trial on an essentially equitable Title VII claim simply
by citing Section 1981. In a somewhat similar situation (where a
plaintiff pleaded only a Section
1981 claim), Lynch v. Pan American World Airways, Inc., 475 F.2d 764, 765
(5th Cir. 1973) held (citations omitted):
A claim for reinstatement is equitable in
nature. The imposition of monetary
damages to make the employee whole for
lost backpay does not change the character
of the proceeding and thereby mandate
a jury trial. . . . Neither may the
Plaintiff — by framing his prayer under
§ 1981 or by making unsupported allegations
for compensatory and punitive damages
— unilaterally alter the genre of the
But the continued vitality of Lynch is questionable. At least two
recent decisions have rejected Lynch and permitted jury trials for
Section 1981 claims when combined with a Title VII claim based on the
same allegations. Bibbs v. Jim Lynch Cadillac, Inc., 653 F.2d 316, 318-19
(8th Cir. 1981); Thomas v. Resort Health Facility, 539 F. Supp. 630
This Court finds the approach taken by Bibbs and Thomas persuasive.
Daniels should be entitled to a jury trial on any legal — as
opposed to equitable — aspects of her Section 1981 claim.*fn1
Determination of which aspects are "legal" and which "equitable" in
nature poses in part the same question addressed in Moore and Setser.
Only an uninformed (or at best partly-informed) decision on all facets of
the problem can be made at the pleading stage of a lawsuit. It will be
time enough to consider the possible narrowing of the jury-triable issues
when more information about this action is obtained through discovery.
With time, both the law in this area and the full scope of Daniels'
Section 1981 claim will become more focused.
Lord & Taylor's motion to strike Daniels' jury demand is granted as to
her Title VII claim and denied in all other respects. At an appropriate
later point in the litigation this Court will resolve what ...