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RIBANDO v. UNITED AIRLINES

March 20, 1992

CYNTHIA C. RIBANDO, Plaintiff,
v.
UNITED AIRLINES, INC., and THOMAS AHERN, as Plan Administrator, Defendants.



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

 ORDER

 Before the court is United Airlines, Incorporated's ("United") motion to strike portions of Cynthia C. Ribando's ("plaintiff") Second Amended Complaint. For the reasons set forth below, the court grants the motion.

 FACTS

 Plaintiff's complaint alleges that she was employed as a scheduler in the station services department of United at O'Hare International Airport in Chicago. She had an unblemished work record from the beginning of her employment with United in June 1984 through 1988. In August 1988, plaintiff gave birth to a son; he was born three months premature. Plaintiff then took three weeks sick leave. The costs of her son's hospitalization during the four months following his birth, which were covered by United's benefit plan, were extremely expensive.

 Beginning in December 1988, United allegedly began to engage in a series of discriminatory and retaliatory acts. According to plaintiff, United improperly accused her of rule and regulation violations, selectively enforced certain other rules and regulations against her, and unlawfully fired her and then improperly refused to reimburse her for backpay after her reinstatement.

 Plaintiff exhausted her administrative remedies and the Equal Employment Opportunity Commission issued her a "Notice of Right to Sue" on July 12, 1990. She filed her complaint on October 19, 1990, alleging violations of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000(e) et seq.), claiming illegal discrimination based on sex and pregnancy. After the Civil Rights Act of 1991 (the "Act") was signed into law by President Bush on November 21, 1991, plaintiff amended her complaint to seek compensatory and punitive damages and a jury trial. United filed the present motion to strike the complaint's requests for a jury trial and punitive damages. Because the original complaint and the allegedly discriminatory conduct occurred before November 21, 1991, the effective date of the Act, the court must determine whether to apply the Act 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., 60 U.S.L.W. 3481 (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. *fn1"

 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

 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))). *fn2" 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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