the Court left its holdings in Thorpe and Bradley undisturbed.
Recognizing that a court of appeals may not determine when a Supreme Court decision has been effectively overruled, the Seventh Circuit in Mozee attempted to reconcile the Thorpe-Bradley and Bowen lines of cases. Mozee, 963 F.2d at 935-36. The Mozee court, persuaded by Justice Scalia's command that the presumption of prospective application is both rooted in history and grounded in notions of fairness, concluded that Bowen states the general rule. Mozee, 963 F.2d at 935 (citing Bonjorno, 494 U.S. at 855 (Scalia, J., concurring)). Moreover, the Thorpe-Bradley presumption of retroactive application would apply only in that narrow category of cases in which the statute does not impact substantive rights and obligations. Id. at 935-36 (citing Bennett, 470 U.S. at 639).
2. Prospective application to suits filed after the effective date of the Act
In light of the Seventh Circuit's instruction, we hold that the Civil Rights Act of 1991 will be applied prospectively in cases where the conduct occurred before the Act's enactment and where the lawsuit is filed afterwards. This is consistent with the timeless rule that laws should operate on future transactions and should not be used to punish past conduct.
The key question in this analysis is whether the remedies sought here, compensatory damages and a jury trial, constitute "substantive rights and obligations."
In Mozee, the court discussed, in dicta, the applicability of the Bowen rule to the damage and procedural provisions in the 1991 Act. Mozee, 963 F.2d at 939. Suggesting that courts arguably should apply such provisions in effect at the time of trial, the Mozee court shied away from this position because of the likely confusion which would be caused by conducting a provision-by-provision analysis between those parts of the Act that regulate procedure and those that impact substantive rights. Id. at 940.
In Luddington, 966 F.2d at 229, Judge Posner resolved the uncertainty expressed by the court in Mozee. Recognizing that, with one exception, the 1991 Act did not prohibit any conduct already prohibited under Title VII, the court observed that the Act made changes solely in remedies, procedures, and evidence. Id. But, the court warned, "such changes can have as profound an impact on behavior outside the courtroom as avowedly substantive changes." Id. Noting that employers are subject to greater liabilities under the 1991 Act, the court observed:
The amount of care that individuals and firms take to avoid subjecting themselves to liability whether civil or criminal is a function of the severity of the sanction, and when the severity is increased they are entitled to an opportunity to readjust their level of care in light of the new environment created by the change. That is the philosophy behind the ex post facto clause and also behind the interpretive principle that presumes that a new civil statute applies only to conduct that occurs after its effective date.
Id. Thus, Luddington makes it clear that compensatory damages impact on the substantive rights and obligations of a defendant-employer.
Applying this interpretation to the facts here, it would be unjust to hold METRA liable for compensatory damages. Although their alleged actions may have been proscribed under prior law, an action for damages was not previously allowed. Further, employers should be permitted to readjust their level of care to changes in the law. We therefore hold that prospective application of the Civil Rights Act of 1991 is appropriate in cases filed after the effective date concerning pre-enactment conduct.
We therefore grant METRA's motion to strike the paragraphs in Count I and Count II which allege that the Civil Rights Act of 1991 applies to Bryant's situation.
B. Motion to Dismiss Remaining Counts
The Court should not dismiss a complaint "unless it appears beyond a doubt that Plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Gorski v. Troy, 929 F.2d 1183, 1186 (7th Cir. 1991) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)).
METRA contests that Bryant alleged insufficient facts to conclude that he was "unjustly accused" of sexual harassment and provided with an "inappropriate investigation and inadequate hearing." To establish a prima facie case of race discrimination, a plaintiff must demonstrate that "(1) he was a member of a protected class (2) who was qualified for his job (3) but was discharged while those in other classes were not." Reed v. Amax Coal Co., 971 F.2d 1295, 1299 (7th Cir. 1992) (citing Andre v. Bendix Corp., 841 F.2d 172, 175 (7th Cir. 1988), cert denied, 488 U.S. 855, 102 L. Ed. 2d 116, 109 S. Ct. 144 (1988)).
In this case, Bryant has alleged sufficient facts to establish a prima facie case of race discrimination. In Count II, paragraph 1, Bryant states that he is a member of a protected class; he is black. In Count II, paragraph 4, Bryant states his qualifications for the security officer position, specifically citing his previous work experience as a security officer and his security training in the U.S. Army. In Count II, paragraphs 5 and 6, Bryant states that he was discharged for alleged misconduct which was nearly identical to that of a white METRA security officer who was retained. Bryant has sufficiently pled facts to support his discrimination claim. We deny METRA's motion to dismiss Count II.
The Supreme Court has held that government entities can be held liable under § 1983 for constitutional violations caused by their official policies.
Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 690-691, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). Plaintiff must allege sufficient facts that he was injured, and that some municipal policy, custom or practice proximately caused the injury. Polk County v. Dodson, 454 U.S. 312, 326, 70 L. Ed. 2d 509, 102 S. Ct. 445 (1981). Mere allegations or conclusions are insufficient to plead a § 1983 claim. Rodgers v. Lincoln Towing Service, Inc., 771 F.2d 194, 202 (7th Cir. 1985). We are, however, aware that plaintiffs may lack "even the minimum pleading requirements . . . until they are allowed discovery and that dismissing such claims prematurely could permit constitutional violations to go unremedied." Means v. City of Chicago, 535 F. Supp. 455 (N.D. Ill. 1982).
In the case at hand, Bryant has pled that he was discharged after engaging in constitutionally protected conduct. He also alleges four other individuals were discharged or sanctioned in keeping with this discriminatory policy. He states the names and circumstances under which they were discriminated. Without further information gained through discovery it is too early to dismiss the § 1983 claims. Although courts have held that one incident of discriminatory conduct may be insufficient to plead a § 1983 claim, the accumulation of a series of incidents may rise to the level of policy. Strauss v. City of Chicago, 760 F.2d 765 (7th Cir. 1985). These incidents, if in fact true, would constitute five separate occasions when METRA may have acted according to a discriminatory policy. This is sufficient to survive a motion to dismiss the § 1983 claims. We deny METRA's motion as to the § 1983 claims.
We further find that Bryant has sufficiently pled facts that support his first amendment speech claim. Bryant was speaking out on a matter of public concern - the discriminatory practices at METRA; and METRA allegedly discharged him because of that speech. See Barkoo v. Melby, 901 F.2d 613, 617 (7th Cir. 1990). Bryant alleges that shortly after he engaged in the speech against METRA he was subjected to adverse personnel actions.
This is precisely the kind of conduct which Title VII was designed to eradicate. If, in fact, it is true that METRA fabricated disciplinary notices and engaged in a pattern of harassment which included these notices and surveillance, it will become evident during the discovery phase of this litigation. It is sufficient at this stage, that Bryant has pled that these practices have occurred. We cannot say, beyond a doubt, that Bryant can prove no set of facts in support of his claim which would entitle him to relief. For these reasons, we deny Metra's motion to dismiss the First Amendment and due process claims.
For the foregoing reasons, we grant METRA's motion to strike paragraphs in Count I and II of the Complaint which allege claims under the Civil rights Act of 1991, we deny METRA's motion to dismiss Counts II, III, IV.
GEORGE M. MAROVICH
UNITED STATES DISTRICT JUDGE
DATED: Nov. 25, 1992