The opinion of the court was delivered by: GEORGE M. MAROVICH
MEMORANDUM OPINION AND ORDER
Arnie F. Bryant ("Bryant") filed suit against Northeast Illinois Regional Commuter Railroad Corporation ("METRA") bringing claims for violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e), et seq., as amended by the Civil Rights Act of 1991; the Civil Rights Act of 1871, 42 U.S.C. § 1983; and the First and Fourteenth Amendments to the United States Constitution. METRA moves to strike certain paragraphs of Count I, and dismiss Counts II, III, and IV, with prejudice. For the reasons set forth below, we grant METRA's motion to strike the paragraphs which allege the applicability of the Civil Rights Act of 1991 and deny the motion as to the remaining counts.
In June 1989, Bryant, a black male, began employment with METRA as a security officer. In November 1989, Bryant was elected chairman of the Minority Transportation Workers of America ("MTWA"), a local organization of minority transportation employees concerned with fairness and equality within the industry.
As part of his responsibilities as the MTWA chairman, Bryant sought to have meetings with James E. Cole, METRA's chairman, and participated in radio interviews, wherein he voiced concerns and grievances of METRA's minority employees pertaining to discriminatory hiring and promotion practices of METRA. Bryant also sent letters to several elected officials in which he questioned METRA's discriminatory hiring and promotion practices. Shortly after Bryant engaged in these activities, his METRA supervisors allegedly began a systematic pattern of harassment of Bryant, including surveillance and contrived disciplinary notices.
Bryant alleges that in September 1990, METRA unjustly accused him of sexually harassing an individual that Bryant found trespassing on METRA property. METRA later accused a similarly-situated, white, male security officer of sexual harassment in February 1991. Whereas the white security officer received a five day suspension, Bryant was terminated from his position with METRA in October 1990.
In Count I, Bryant claims that METRA discharged him in retaliation for his activities as MTWA chairman in violation of Title VII of the Civil Rights Act of 1964. In Count II, Bryant alleges racial discrimination in violation of Title VII of the Civil Rights Act of 1964. In both counts, Bryant seeks various equitable remedies, compensatory damages and trial by jury. Count III is a claim, relating to the retaliatory discharge, under the Civil Rights Act of 1871, 42 U.S.C. § 1983, and the First and Fourteenth Amendments to the United States Constitution. Count IV is a claim, relating to the discriminatory discharge, under the Civil Rights Act of 1871, 42 U.S.C. § 1983, and the Fourteenth Amendment to the United States Constitution.
METRA moves to strike Bryant's request for compensatory damages and trial by jury in Counts I and II, arguing that the Civil Rights Act of 1991 is inapplicable to the situation here. METRA also moves to dismiss Counts II, III, and IV. METRA contests that the facts in those counts are insufficient to support a claim for relief.
A. Retroactivity of the Civil Rights Act of 1991
This case presents us with the unique question of whether the Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 ("1991 Act" or "Act"), applies to cases filed after the effective date of the Act (November 21, 1991) that arise from conduct committed before that date. Although the Seventh Circuit has held that the 1991 Act should apply prospectively to all cases filed before the effective date, it has not decided how the Act should apply to cases filed after the effective date.
Despite the numerous courts which have ruled on the retroactivity of the 1991 Act, the factual scenario before this Court has been considered by only a few district courts. See Daniel V. Kinsella, The Civil Rights Act and the Retroactivity Muddle, 80 Ill. B.J. 500, 503 (1992), for a listing of recent district and circuit court rulings on the broader retroactivity issue.
In Luddington v. Indiana Bell Telephone Co., 966 F.2d 225, 229 (7th Cir. 1992), the court held that "the new act is applicable only to conduct engaged in after the effective date . . . in the act, at least if the suit had been brought before the effective date." (emphasis added). In Banas v. American Airlines, 969 F.2d 477, 484-85 (1992), the Seventh Circuit reinforced that its previous decisions have left unresolved whether the 1991 Act "should be applied to entirely new proceedings begun after its passage." See also Mozee v. Am. Commercial Marine Serv. Co., 963 F.2d 929, 939-40 (7th Cir. 1992). Nevertheless, Mozee and Luddington provide sufficient instruction to guide us in our determination.
METRA asserts that the decisions in the Seventh Circuit foreclose the possibility that the 1991 Act be applied retroactively in any case where the actions occurred prior to the Act's effective date. Bryant contests that the Seventh Circuit has intentionally left this question open and that ...