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May 14, 1992

KLAUS FRITSCH, et al., Defendants.

The opinion of the court was delivered by: JOHN A. NORDBERG


 Plaintiffs Karen B. Kennedy, Pamela L. Drozd, and Trudy Swanson are current or former waitresses employed by defendant Morton's of Chicago ("Morton's"). Plaintiffs allege that, while employed at defendant's downtown restaurant, they were subjected to sexual harassment and discrimination on the basis of their sex by certain individual employees of Morton's, also named as defendants. Plaintiffs initially filed suit in 1990. Their second amended complaint, filed March 12, 1991, included counts for violations of title VII of the Civil Rights Act of 1964, conspiracy to violate civil rights under 42 U.S.C. § 1985(c), as well as supplemental Illinois law claims.

 Subsequently, Congress enacted the Civil Rights Act of 1991. Pub. L. No. 102-166 (1991). Section 102(a)(1) of the Act expands the remedies previously available for victims of intentional discrimination prohibited under title VII to include compensatory and punitive damages. Part (c) of section 102 provides for a right to jury trial if such damages are sought. *fn2"

 Before the court is plaintiffs' motion for leave to file a third amended complaint adding a request for compensatory and punitive damages to their Title VII claim, and making other changes incorporating the elements necessary to plead such a claim. *fn3" The issue for the court is whether section 102 of the Act applies to cases filed prior to the enactment of the Act, or whether its effect is prospective only.


 A major point of contention in deciding whether the Act applies retroactively is the question of what sort of presumption on this subject is given to acts of Congress by the courts. Two Supreme Court decisions are in conflict on this issue. In Bradley v. School Board of the City of Richmond, 416 U.S. 696, 715-17, 40 L. Ed. 2d 476, 94 S. Ct. 2006 (1974), the court held that all courts apply the law in effect at the time they render a decision, including statutory law, unless manifest injustice would result, or there was statutory language or legislative history to the contrary. Conversely, the court held in Bowen v. Georgetown University Hospital, 488 U.S. 204, 109 S. Ct. 468, 471, 102 L. Ed. 2d 493 (1988), that congressional enactments and administrative rules would not be construed to apply retroactively unless their language required that result.

 The court noted the tension existing between these two holdings in Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 110 S. Ct. 1570, 1577, 108 L. Ed. 2d 842 (1990), but declined to resolve it at the time. A similar conflict exists as to which of the two holdings has been adopted as the law of this circuit. Compare Littlefield v. McGuffey, No. 90-3799, 954 F.2d 1337, 1992 U.S. App. LEXIS 919, at 12 (7th Cir. January 27, 1992); and F.D.I.C. v. Wright, 942 F.2d 1089, 1095 (7th Cir. 1991); with Orrego v. W. Buena Joint Venture, 943 F.2d 730, 735. Although ultimately, it is the court's conclusion that whether or not section 102 applies retroactively depends on the presumption applied, at this point this is not the relevant inquiry to make. Since, congressional intent, when clear, governs under either presumption, Bonjorno, 110 S. Ct. at 1577, the court must first seek Congress' intent, if any, with regard to the retroactivity of section 102 as it applies to pending cases in district court. The Mozee decision of course now governs with respect to application of the Act to pending cases at the appellate level.

 I. The Statutory Language

 The starting point for interpretation of the intent of a statute is the statutory language itself. Absent a clearly expressed legislative intention to the contrary, the language of the statute is conclusive. Bonjorno, 110 S. Ct. at 1575. Nowhere in the Act did Congress expressly state that the Act, or specific sections of it, would be applied retroactively. However, the parties have raised several arguments in favor of retroactivity based on the language and structure of the text of the Act as a whole.

 First, plaintiffs point out that one of the stated purposes of the act is "to respond to recent decisions of the Supreme Court by expanding the scope of relevant civil rights statutes in order to provide adequate protection to victims of discrimination." Pub. L. No. 102-166, § 3(4). Where Congress acts to overrule the Supreme Court's interpretation of an existing statute, it is presumed to act retroactively. Ayers v. Allen, 893 F.2d 732, 754-55 (5th Cir.), vacated on other grounds, 914 F.2d 676 (en banc 1990), cert. granted, 111 S. Ct. 1579, 113 L. Ed. 2d 644 (1991); Mrs W. v. Tirozzi, 832 F.2d 748, 755 (2d Cir. 1987); Bd. of Education of E. Windsor Regional School v. Diamond, 808 F.2d 987, 995-96 (3d Cir. 1986). The logic behind this presumption is that Congress is merely acting to clarify a legislative purpose long in place, which the court has misinterpreted. Diamond, 808 F.2d at 995.

 In addition, since judicial decisions are regularly applied to pending cases, Chowaniec v. Arlington Race Track Park, Ltd., 934 F.2d 128, 131 (7th Cir. 1991), it is only logical to assume Congress would intend its legislative correction of a judicial decision interpreting a statute to apply retroactively, to prevent inconsistent results under the statute. Although, therefore, those sections of the Act which specifically overrule prior Supreme Court interpretations of the civil rights laws apply retroactively, *fn4" this argument is inapplicable to section 102, which creates new statutory rights not previously interpreted by the Supreme Court.

 The court is aware of the decisions in Fray v. Omaha World Herald, 960 F.2d 1370 (8th Cir. 1992), and DeVargas v. Mason & Hanger-Silas Mason Co., 911 F.2d 1377 (10th Cir. 1990), which reject this approach, but respectfully declines to follow their logic. The DeVargas court based its rejection of the Ayers court's approach by taking the simultaneously inconsistent positions that it is Congress' constitutional role to make the law, and the court's role to say what it is, and that when the Supreme Court interprets a statute, its interpretation becomes part of the statute. DeVargas, 911 F.2d at 1387-88. This is the very reason the Ayers court ruled the way it did. Supra, p. 4.

 Though this may be "a slender thread" to the DeVargas court, id., at 1387, that court relies on the even more perilous fiction that, although a subsequent Congress is a distinct entity from its predecessor possessing a separate legislative intent, the judicial branch is an organic entity, whose decisions never lack continuity. Id., at 1388. If this is so, what happens when the Supreme Court overrules a prior statutory interpretation, a not uncommon occurrence? See Patterson v. McLean Credit Union, 485 U.S. 617, 618-19, 99 L. Ed. 2d 879, 108 S. Ct. 1419 (1988) (citing cases). The Fray court relies on a similar fiction, that it is proper to infer ...

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