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April 28, 1992



The opinion of the court was delivered by: GEORGE M. MAROVICH

Mildred Nigrelli ("Nigrelli") brings this Title VII action against the Catholic Bishop of Chicago ("Catholic Bishop") claiming that she was discharged from her position as a parochial school principal as a result of her refusal to participate in sexual activity with the pastor of the parish to which she was assigned. Nigrelli moves to amend her complaint following the recent amendments to Title VII in order to obtain a trial by jury and to add claims for compensatory damages. For the reasons set forth below, we deny Nigrelli's motion for leave to file an amended complaint.


 Nigrelli was employed by the Catholic Bishop in the Chicago parochial school system for a twenty-year period beginning in 1963. From 1964 until her discharge in 1983, Nigrelli worked at St. Mary Star of the Sea School, the parochial school associated with St. Mary of the Sea Church. During her service at St. Mary's, Nigrelli was promoted to principal, the position she held at the time of her discharge. The circumstances leading up to Nigrelli's discharge are at issue in this suit.

 As one of his responsibilities, the priest at St. Mary's reviewed the performance of the faculty and staff at the school. Beginning in 1975, the Catholic Church assigned a new priest to the St. Mary Star of the Sea Church. According to Nigrelli, from 1975 until 1981, that priest rated her performance as excellent. However, beginning in 1981, the priest assigned Nigrelli poor performance ratings. According to Nigrelli, her poor performance ratings were due to factors unrelated to the discharge of her duties as principal.

 Nigrelli attributes her declining performance reviews to a series of events beginning in June 1981. At that time, an acquaintance of Nigrelli was suspicious that his wife and the priest were engaged in an improper relationship. Nigrelli confronted the priest about this purported affair. After this confrontation, Nigrelli alleges that her professional relationship with the priest changed.

 Nigrelli filed a timely charge of employment discrimination with the Equal Employment Opportunity Commission, and she received a right to sue letter. Thereafter, Nigrelli filed a Title VII discrimination suit against the Catholic Bishop. That case has been pending since 1984.

 Recently, Congress amended Title VII effective November 21, 1991. Pub. L. No. 102-166. (Hereafter we will refer to the 1991 Amendment as the "Amendment" or the "Act.") That amendment allows plaintiffs to recover legal damages and provides plaintiffs the right to a trial by jury. Following that amendment, Nigrelli moved for leave to file an amended complaint to request a trial before a jury and to expand her ad damnum clause to seek compensatory damages. The Catholic Bishop argues the court should not apply the 1991 Amendment retroactively, and therefore it objects to Nigrelli's motion.


 Leave to amend should be freely given when justice requires, Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330, 28 L. Ed. 2d 77, 91 S. Ct. 795 (1971); Fed. R. Civ. P. ("Rule") 15(a); however, the district court has discretion to decide whether a party can amend a complaint. Perkins v. Silverstein, 939 F.2d 463, 471 (7th Cir. 1991); Amendola v. Bayer, 907 F.2d 760, 764 (7th Cir. 1990) (a denial of leave to file an amended complaint will be overturned only if the district court abused its discretion). A district court may deny leave to amend if the proposed amendment fails to cure the deficiencies in the original pleading or could not survive a second motion to dismiss. Perkins, 939 F.2d at 472.

 The only issue before this court is one faced by all courts across the country: whether the 1991 Amendment to Title VII should be applied retroactively. Our resolution of this issue will determine whether we allow Nigrelli to amend her complaint.

 Whether a statute should 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, 106 S. Ct. 2251, 90 L. Ed. 2d 697 (1986). The text of the 1991 Amendment does not state whether the Amendment is to apply retroactively. Section 402(a) provides as follows: "Except as otherwise specifically provided, this Act and the amendments made by this Act, shall take effect upon enactment." Courts construe this language as equivocal in regard to retroactivity. E.g. Fray v. Omaha World Herald, 960 F.2d 1370, slip op., 1992 WL 65663 (8th Cir. 1992).

 When Congress's intent cannot be determined from the language of the statute, courts can rely on other sources to determine congressional intent. Illinois EPA v. United States EPA, 947 F.2d 283, 290 (7th Cir. 1991). For example, courts can look to legislative history; including subcommittee hearings, marking up sessions, floor debates, and House and Senate reports, for direction regarding congressional intent. This seemingly unambiguous task, however, is ...

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