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SOFFERIN v. AMERICAN AIRLINES

March 9, 1992

JEFFEREY L. SOFFERIN,, Plaintiff,
v.
AMERICAN AIRLINES, INC., D.J. NELSON, and H.K. TOURTELLOTT, Defendants.



The opinion of the court was delivered by: CHARLES RONALD NORGLE, SR.

HONORABLE CHARLES R. NORGLE

 ORDER

 Before the court is American Airlines, Incorporated's ("American") motion pursuant to Federal Rule of Civil Procedure 12 to strike and dismiss portions of Count I and the entirety of Count II of Jefferey L. Sofferin's ("plaintiff") First Amended Complaint. For reasons detailed below, the motion is granted.

 FACTS

 The Amended Complaint and briefs reveal that plaintiff was employed as a probationary co-pilot with American from February, 1986, to February, 1987. His goal was to become an American pilot. During his term he flew with several American pilots as part of the flight crew and was evaluated by these pilots on his cockpit performance. Captains D.J. Nelson and H.K. Tourtellott gave plaintiff unfavorable reviews. Plaintiff claims these unfavorable reviews were a consequence of the Captains' alleged anti-Semitic attitudes. Although he admitted that he never told the pilots he was Jewish, he supports his argument by claiming his outward appearance and mannerisms are peculiar to people of Jewish ancestry and thus the Captains knew he was Jewish and could inflict their religious prejudices on him. *fn1" The reviews of pilots who serve with the probationary pilot on a flight crew are placed in the probationary pilot's file.

 At plaintiff's eleven month review with American before a review board, the board was provided with copies of the Nelson, Tourtellott, and other pilots' reports. Plaintiff was also asked a hypothetical question, as was the practice in these reviews, in which he was to specify his reaction to a certain (emergency) situation occurring on board a plane he was piloting. Plaintiff failed to answer the question properly. Plaintiff was never promoted to pilot.

 Plaintiff sued American, and Captains Nelson and Tourtellott under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981 of the Civil Rights Act of 1866 claiming American failed to promote him to pilot because of religious discrimination. On January 31, 1992, plaintiff filed his amended complaint seeking both compensatory and punitive damages under 42 U.S.C. § 2000e (Title VII) and 42 U.S.C. § 1981, both as amended by the Civil Rights Act of 1991 (the "Act"). *fn2" Because the original complaint and the allegedly discriminatory conduct occurred before November 21, 1991, when President Bush signed the Act into law, the court must determine whether the Act is to be applied retroactively.

 DISCUSSION

 Determining whether a statute is to be applied retroactively is a matter of statutory construction. United States v. Kimberlin, 776 F.2d 1344, 1347 (7th Cir. 1985), cert. denied, 476 U.S. 1142, 90 L. Ed. 2d 697, 106 S. Ct. 2251 (1986). Although some courts have deferred ruling on whether the Act should be applied retroactively until such time as the Supreme Court rules on the issue, that Court has implicitly suggested it would rather the circuits flesh out the problem before granting certiorari. See Hicks v. Brown Gp., Inc., 60 U.S.L.W. 3522 (U.S. Mar. 2, 1991) (No. 91-116); Holland v. First Virginia Banks, Inc., 112 S. Ct. 920, 116 L. Ed. 2d 819 (U.S. Feb. 24, 1992) (No. 91-974); Gersman v. Group Health Assoc., Inc., 117 L. Ed. 2d 127, 112 S. Ct. 960 (1992) (all granting certiorari, vacating decision, and remanding the cases so that the circuit court could consider applicability of the Act). This court will therefore resolve the matter here. *fn3"

 I. Review of Applicable Law

 The Supreme Court has laid down two separate tests to determine whether a statute should be applied retroactively or prospectively in Bradley v. School Bd. of Richmond, 416 U.S. 696, 40 L. Ed. 2d 476, 94 S. Ct. 2006 (1974) and Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 102 L. Ed. 2d 493, 109 S. Ct. 468 (1988). There is an "apparent tension" between these two decisions, Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 837, 108 L. Ed. 2d 842, 110 S. Ct. 1570 (1990), and Justice Scalia went so far as to call the conflict irreconcilable. Id. at 841 (Scalia, J., concurring). As the court concludes that the result under either rule is the same, this court analyzes the Act under both rules, in a fashion similar to that employed by the Supreme Court in Bonjorno, in reaching its conclusion that the Act should apply prospectively. See id. at 837.

 A. Bradley v. School Board of Richmond

 In Bradley, parents of several school-age children sought attorneys' fees resulting from protracted desegregation litigation in the Richmond, Virginia school system. The district court awarded fees, despite the absence of a specific statutory grant of power to do so, based on the court's equity power and an analogy to the provision in the Civil Rights Act of 1964 which provided for the award of fees and costs. The school board appealed. After submission, but prior to the rendering of the Fourth Circuit's opinion, 20 U.S.C. § 1617 (1970 ed., Supp. II) was amended to provide for the award of attorney's fees in an appropriate school desegregation case. The en banc panel of the Court of Appeals did not consider application of § 1617 to the Bradley case as they had previously held that the law applied only to cases filed after its effective date. Bradley v. School Bd. of Richmond, 472 F.2d 318, 331 n.57 (4th Cir. 1972) (en banc) (citing Thompson v. School Bd. of City of Newport News, 472 F.2d 177, 178 (4th Cir. 1972)). The appellate court then reversed the trial court's award of fees finding that the invocation of equity to award fees was not proper. Id. at 332.

 The Supreme Court reversed, holding that the Court of Appeals should have applied § 1617 to Bradley. Bradley, 416 U.S. at 724. The Court explained that "even where the intervening law does not explicitly recite that it is to be applied to pending cases, it is to be given recognition and effect." Id. at 715 (citing Thorpe v. Housing Auth. of Durham, 393 U.S. 268, 21 L. Ed. 2d 474, 89 S. Ct. 518 (1969) (expanding on holding of United States v. Schooner Peggy, 1 Cranch 103 (1801))). *fn4" Thus, the Court created a presumption that a Congressional enactment was to be applied retroactively to post-judgment decisions pending on appeal. Id.

 The Court found, however, that the presumption was not absolute and created two exceptions. First, if Congress has stated an intent to have the law be applied prospectively, it must be so applied. Id. at 715-16. Second, no retroactive effect can be given to a law if such an application would result in "manifest injustice". Id. at 716-717 (citing Thorpe and Schooner Peggy). "Manifest injustice" is a phrase of art, itself comprised of a three-part test used to determine whether a law should be applied retroactively. That tripartite analysis considers, "(a) the nature and ...


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