There is well-established precedent that claims brought under Section 1981 are legal in nature and triable to a jury on demand whereas claims brought under Title VII are equitable and therefore, triable to the bench. Handy Button Machine Co., 817 F.2d at 1293 (7th Cir. 1987); See e.g. Daniels, 945 F.2d at 909. In the case at bar, only the Section 1981 claim was presented before the jury. It follows that the plaintiff was not required to submit questions regarding the specific elements of the disparate impact claim to the jury because that claim was to be tried by the court. Indeed, the plaintiff had no right to a jury trial on his Title VII claims. Handy Button, 817 F.2d at 1293. Therefore, F.R.C.P. 49(a) does not preclude the court from conducting a separate hearing as to the disparate impact claim.
Second, the defendant maintains that the jury verdict in its favor suggests that: (1) the jury rejected the testimony of the plaintiff's expert, (2) the jury decided that Dr. Fred Bryant
was not an expert qualified to testify in the area of employment testing, (3) the jury rejected Dr. Bryant's testimony that the BSAT
was not valid and (4) the plaintiff presented no credible evidence of "lessor discriminatory alternatives that were as effective as the BSAT." (Def. Post-hrg. brief, p.6).
The defendant further maintains that because the assessment of the credibility of witnesses comes under the purview of the jury, the court must presume that the jury found that the plaintiff's evidence was not credible; and therefore, the court cannot consider it in rendering a decision on the disparate impact claim.
The court disagrees. The credibility of the witnesses falls within the purview of the fact-finder. With respect to those factual elements of the disparate impact claim which were not found by the jury, the court is the trier of fact. Further, at this juncture, the defendant's contentions as to what the jury's verdict suggests in terms of the specific elements of the disparate impact claim are too speculative for the court to base its ruling on. While the defendant's assertions that the court may not second guess the jury's determinations of the credibility of witnesses are well-taken, it is important to bear in mind that the jury did not render a verdict on the disparate impact claim. Therefore, the presence of a jury's verdict on the Section 1981 claim does not foreclose the plaintiff's opportunity to present evidence sufficient to support his disparate impact claim at a hearing.
Instead, the implications of the jury's verdict can more easily be determined by comparing the elements of the Section 1981 claim with those of the disparate impact claim. The critical element in a Section 1981 claim is a showing of intentional discrimination. East v. City of Chicago, 719 F. Supp. 683 (N.D.Ill. 1989) [J. Shadur] (claim under Section 1981 requires showing of an intent to discriminate which involves the rights enumerated in the statute); Randle, 876 F.2d at 568; North, 844 F.2d 401, 408; Yarbrough v. Tower Oldsmobile, Inc., 789 F.2d 508, 510-511 (7th Cir. 1986); Mason, 704 F.2d at 364. Watson v. Pathway Financial, 702 F. Supp. 186 (N.D.Ill. 1981) [J. Marovich].
With respect to the disparate impact claim, 42 U.S.C. Section 2000e - 2(a)
defines as an unfair employment practice an employer's discrimination against any individual with respect to hiring or the terms and conditions of employment because of such individual's race, color, religion, sex or, national origin; or to limit, segregate, or classify his employees in ways that would adversely affect any employee because of the employee's race, color, religion, sex or national origin. See Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 104 L. Ed. 2d 733, 109 S. Ct. 2115 (1988).
The specific elements of a pre-1991 disparate impact claim require that a complaining party : (1) identify the specific employment practice that is allegedly responsible for any observed statistical disparities Watson v. Fort Worth Bank & Trust, 487 U.S. at 994; (2) show that the challenged practice has a significant disparate impact on employment opportunities for whites and nonwhites Wards Cove, 490 U.S. at 642, 658; and (3) demonstrate that it is the application of a specific or particular employment practice that has created the disparate impact under attack
Wards Cove, 490 U.S. at 657. If the plaintiff satisfies these burdens of proof, then the case shifts to the employer to offer a business justification for the employment practice. Wards Cove, 490 U.S. at 658. The business justification stage of disparate impact case consists of two components : (1) a consideration of the justifications an employer offers for his use of these practices; and (2) the availability of alternative practices to achieve the same business ends, with less racial impact. Wards Cove, 490 U.S. at 658 (citing Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 45 L. Ed. 2d 280, 95 S. Ct. 2362 (1975).
As distinct from a Section 1981 claim, a plaintiff who brings a disparate impact claim need not prove discriminatory intent. Wards Cove, 490 U.S. at 645-646; International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S. Ct. 1843, 1854 n. 15, 52 L. Ed. 2d 396 (1977); Council 31 AFSCME v. Ward, 978 F.2d 373, 378 (7th Cir. 1992); Gilty, 919 F.2d 1247, 1254 (7th Cir. 1990).
A comparison of the elements required under each claim suggest that in issuing a verdict in favor of the defendant on the Section 1981 claim, the jury was stating that it found no intentional discrimination on the part of the defendant. It is equally evident, that the elements of the disparate impact claim remain to be considered.
The defendant next argues that the rule which asserts that a general verdict gives rise to a presumption that the factual issues have been resolved in favor of the prevailing party (see Wassell v. Adams, 865 F.2d 849, 855 (7th Cir. 1989); Geldermann, Inc. v. Financial Management Consultants, Inc., 785 F. Supp. 1296, 1298 (N.D.Ill.1992) [J. Sharp]) requires the court to enter judgment in favor of the defendant on the disparate impact claim because the jury's verdict on the Section 1981 claim was in its favor. (Def. Post-hrg. Mem., p.5). The court disagrees. To accept the defendant's logic would be tantamount to denying the plaintiff any kind of hearing on his Title VII disparate impact claim. The jury was not asked to decide the Title VII disparate impact claim; and a decision was not rendered as to that claim. Therefore, it is the court's task to evaluate the evidence specific to it.
Similarly, the plaintiff goes too far in asserting that the jury verdict has "no effect" on this court's determination of the disparate impact claim. (Supp. Post-hrg., p.3). This proposition is contrary to established precedent which states that the judge is bound as to the common factual issues between the Section 1981 and Title VII claims. At this point it would be useful to draw a distinction between the preclusive effect of the jury's verdict and the preclusive effect of the fact-finding of the jury as to the issues common to the legal and equitable claims. There may be factual issues that are common to both the Section 1981 and the disparate impact claim, and to that extent the court is bound by those issues, the elements of proof for each claim, however, are different; and therefore, the jury's verdict does not preclude the court from conducting a separate hearing on the disparate impact claim and entering findings of fact and conclusions of law thereto.
There are some Seventh Circuit cases which support this approach. For example, in the first, Daniels v. Pipefitters' Association Local Union No. 597, 945 F.2d 906 (7th Cir. 1991) cert denied, 112 S. Ct. 1514, 117 L. Ed. 2d 651 (1992), a welder filed suit against his union alleging multiple legal theories and claiming relief under, inter alia, Section 1981 and Section 2000e-2 of Title VII. The Section 1981 claim was tried before a jury which rendered a verdict in the plaintiff's favor and awarded him compensatory and punitive damages. The district court then held a bench trial on the Title VII claim and also entered judgment in favor of the plaintiff. On appeal, the union argued that the district court's decision should be reversed because the judge did not make independent findings of fact but instead relied upon the jury's verdict on the Section 1981 and fair representation claims. Daniels, 945 F.2d at 923. In particular, the union challenged the evidentiary basis for the district judge's ruling that the union violated Title VII due to the disparate impact of its hiring practices on blacks.
Daniels, 945 F.2d at 923. After reasserting its position that the jury's fact-finding on issues common to the jury and judge-tried claims is dispositive, the Seventh Circuit noted that :
although the district court adopted the jury's findings of fact, it made additional findings of its own sufficient to support liability under a theory of disparate impact.
Daniels, 945 F.2d at 923.
In affirming the district court's decision, the Seventh Circuit emphasized that the trial court credited the testimony of a statistical expert who testified in support of the plaintiff's claim of disparate impact. Daniels, 945 F.2d at 923-924.
Applying this approach to the instant set of facts, the court's ruling in Daniels suggests that this court can and should make separate findings of fact in ruling upon the disparate impact claim. See Snider v. Consolidation Coal Co., 973 F.2d 555 (7th Cir. 1992) (To the extent that the factual issues differ from the section 1981 claim, the court may enter independent findings of fact and conclusions of law as to the disparate impact claim).
As in Daniels, the trial court in Artis v. Hitachi Zosen Clearing, Inc., 967 F.2d 1132 (7th Cir. 1992) conducted separate bench and jury trials for the resolution of the equitable and legal claims respectively. In Artis, the plaintiff, a journeyman engine lathe operator, brought suit against his employer under Section 1981 and Title VII under a theory of disparate treatment. The jury rendered a verdict in favor of the plaintiff on the Section 1981 claim and awarded compensatory and punitive damages. Following the jury trial, the district court reconsidered its initial decision to allow the failure to recall claim to go to the jury under Section 1981 and vacated the jury's verdict. Artis, 967 F.2d at 1135. After holding a bench trial on the Title VII claims, the district court found for the defendant on the Title VII claim which alleged that the defendant failed to train him. Artis, 967 F.2d at 1135. The court, however, ruled in favor of the plaintiff on the failure to recall claim and awarded reinstatement, backpay, prejudgment interest, attorney's fees and costs. Artis, 967 F.2d at 1135.
The defendant appealed the decision on the Title VII failure to recall claim arguing that there was insufficient evidence to support the ruling and the judge relied improperly on the vacated jury verdict. Artis, 967 F.2d at 1135. On appeal, the court found that the district judge followed the jury's verdict on the failure to recall claim and did not comply with Fed. Civ. Proc. Rule 52(a) which requires a judge to make independent findings of fact and conclusions of law. Artis, 967 F.2d at 1137.
The court then considered whether the district judge's failure to enter findings of fact and conclusions of law was proper noting that the trial judge did not indicate any disagreement with the jury's verdict on the failure to recall claim but instead commented that it was supported by the evidence. Artis, 967 at 1137-1138. The court further stated that a judge should continue to be bound by a jury's findings even if the verdict is vacated "so long as the underlying factfinding is not impugned." Artis, 967 F.2d at 1138; See Bailey v. Northern Indiana Public Service, 910 F.2d 406, (7th Cir. 1990). In adhering to this rule, the court reasoned that, since the jury had already heard the Title VII claim, had rendered a verdict on that claim and the underlying fact-finding remained intact, the district court judge was bound by that verdict; consequently, entering separate findings of fact and conclusions of law would only "rubber stamp" the decision as to a claim that was already decided. Artis, 967 F.2d at 1138. Indeed, if the trial judge had found for the defendant on the Title VII failure to recall claim this would in all likelihood be deemed as a verdict inconsistent with the one the jury had previously rendered on that same claim; an outcome the rule is designed to prevent. Such a result would, as the Seventh Circuit notes, "demonstrate the judge's disrespect for the jury's factfinding function." Artis, 967 F.2d at 1138.
With respect to the case at bar, however, the Title VII disparate impact claim was never submitted to the jury. While it is clear that the jury's fact-finding on issues common to the Section 1981 claim and the Title VII disparate impact claim are binding on this court, the verdict itself is not binding on the claim since all of the elements have not been considered. Indeed, a ruling can only be made after additional facts relevant to the disparate impact claim have been determined. Thus, the defendant is premature in making the argument that the court's hearing of the disparate impact claim would contravene the rule of avoiding inconsistent verdicts (Def. Response Post-hrg. Mem., p.7) since neither a verdict nor a ruling on the disparate impact claim has been rendered.
Following this line of reasoning, there is no previous verdict as to this claim which could be characterized as being inconsistent with any subsequent ruling made by the court on the claim of disparate impact.
Therefore, the court finds that the defendant's arguments lack merit and are insufficient to alter this court's conclusion that a hearing on the disparate impact claim is warranted. In addition, the court will provide accompanying findings of fact and conclusions of law in compliance with Fed. Civ. Proc. Rule 52(a).
The court holds that the affirmative defenses asserted in the defendant's Answer to the Third Amended Complaint are insufficient to bar the plaintiff's Title VII claims. The jury's verdict in favor of the defendant on the Section 1981 claim, however, precludes the court from further considering the Title VII disparate treatment claim. Therefore, judgment on the disparate treatment claim is found in favor of the defendant for the foregoing reasons. Entry of judgment on this claim, however, will be postponed pending resolution of the disparate impact claim.
With respect to the Title VII disparate impact claim, this court will conduct a hearing on Monday August 15. Further, in accordance with precedent, the court and the parties are bound by the jury's fact-finding as to the common factual issues which exist between the Section 1981 claim and the Title VII disparate impact claim.
Following the hearing and pursuant to F.R.C.P. 52(a), the court will issue findings of fact and conclusions of law for those issues which are relevant to the Title VII disparate impact claim.
August 15, 1994
BRIAN BARNETT DUFF, JUDGE
UNITED STATES DISTRICT COURT