Michael J. Hoare, Chackes & Hoare, St. Louis, Mo., for appellant.
H. Kent Munson, Stein & Seigel, St. Louis, Mo., for appellees.
Before STEPHENSON and HENLEY, Circuit Judges, and HUNTER, District Judge.
ELMO B. HUNTER, District Judge.
This is an appeal from a final judgment entered below against the appellant Chester Setser and in favor of appellees Novack Investment Co. d/b/a Budig Western Trucking Co. and Alvin S. Novack. For the following reasons, we reverse and remand for jury trial.
Appellant brought his action alleging only violations of 42 U.S.C.A. § 1981 (§ 1981). Appellant, a white male, contended in the district court that he was refused employment with appellees in the fall of 1973 for the unlawful reasons of racial discrimination and retaliation by appellees after appellant filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). Appellant argues on appeal that the district court erred in striking his demand for jury trial and that the district court erroneously found that the appellees did not discriminate or retaliate against appellant. Appellees contend that even if they did discriminate, they did so lawfully because they were following affirmative action guidelines pursuant to Executive Order 11246. Further, appellees assert that as a matter of law retaliation is not cognizable as a cause of action under § 1981.
I.
The complaint sought only monetary damages for backpay, lost insurance benefits, expenses incurred in seeking alternative employment, inconvenience, humiliation and embarrassment, pain and suffering, punitive damages, interest, attorneys' fees and costs. The appellant moved for a jury trial and the appellees opposed such a request only for the claims seeking lost wages, interest, attorneys' fees and costs. On November 8, 1977, the district court, sua sponte, entered its order denying appellant's demand for jury trial on all issues. The district court's order explained the ruling by stating that "this court has consistently held that a jury trial is unavailable in § 1981 cases."
Appellant argues that there is a constitutional guarantee of the right to a jury trial under the Seventh Amendment in an action brought pursuant to § 1981 on all claims for "legal" relief. Even though the Supreme Court has yet to identify specifically the parameters of the jury trial right in § 1981 actions, an analysis of various judicial authorities indicates that parties are constitutionally entitled to jury trials under § 1981 on all legal claims. The Supreme Court has definitively held that "(t)he Seventh Amendment does apply to actions enforcing statutory rights, and requires a jury trial upon demand, if the statute creates legal rights and remedies enforceable in an action for damages in ordinary courts of law." Curtis v. Loether,
415 U.S. 189, 194, 94 S.Ct. 1005, 1008, 39 L.Ed.2d 260 (1974). And, it is clearly settled that actions brought pursuant to § 1981 afford plaintiffs both legal and equitable relief. See Johnson v. Railway Express Agency,
421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975). The legal rights available include "compensatory and, under certain circumstances, punitive damages." Johnson v. Railway Express Agency, supra, 421 U.S. at 460, 95 S.Ct. at 1720. See also Johnson v. Ryder Truck Lines, Inc.,
575 F.2d 471 (4th Cir. 1978); Garner v. Giarrusso,
575 F.2d 300 (5th Cir. 1978); Mahone v. Waddle,
564 F.2d 1018 (3d Cir. 1977); McCrary v. Runyon,
515 F.2d 1082 (4th Cir. 1975), aff'd.,
427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976); Tucker v. Harley Davidson Motor Co., 454 F.Supp. 738, 743 (D.Wis.1978); Peterson v. Lehigh Valley Dist. Council, 453 F.Supp. 735 (E.D.Pa.1978). Further, many lower courts have recognized the appropriateness of submitting all legal contentions encompassed within a § 1981 cause of action to the jury. See Santos v. Mt. Sinai Hospital, (S.D.N.Y.1980); Seymore v. Reader's Digest Ass'n., Inc., 493 F.Supp. 257, 267 (S.D.N.Y.1980); Johnson v. Sea Drilling Corp., 486 F.Supp. 462, 463-64 (E.D.La.1980); McCray v. Standard Oil Co., 76 F.R.D. 490, 501 (N.D.Ill.1977); Saad v. Burns Intern. Sec. Services, Inc., 456 F.Supp. 33 (D.D.C.1978); Miller v. Doctors General Hospital, 76 F.R.D. 136 (D.Okl.1977); Tucker v. Harley Davidson Motor Co., supra, 454 F.Supp. at 744; Marshall v. Electric Hose & Rubber Co., 413 F.Supp. 663, 666-68 (D.Del.1976); but compare Blum v. Gulf Oil Corp.,
597 F.2d 936, 938 (5th Cir. 1979); and Baker v. City of Detroit, 458 F.Supp. 379, 384 (E.D.Mich.1978). We agree with appellant that the district court erred in not granting a jury trial in an action based on § 1981 on all legal claims.
Having concluded that appellant is entitled to a jury trial on all of his legal claims, we are next confronted with appellant's argument that backpay should properly be characterized as a legal damage and thus be an issue for the jury. The question of the proper characterization of backpay arises here in the unusual context of a plaintiff who is not also seeking the equitable remedy of reinstatement. See Lynch v. Pan American World Airways,
475 F.2d 764, 765 (5th Cir. 1973); Booker v. Electrical Workers Union, Local 2021 IBEW (AFL-CIO), 431 F.Supp. 1035, 1036-37 (D.Okl.1977); Flores v. Local 25 International Brotherhood of Electrical Workers, AFL-CIO, 407 F.Supp. 218, 220 (E.D.N.Y.1976); see also Donoghue v. Behler, 429 F.Supp. 403, 406 (D.N.J.1977). Basically, it seems that two rationales have supported the characterization of backpay as an equitable remedy in employment discrimination cases. First, many courts have concluded that backpay is incidental to the much broader equitable remedy of reinstatement, see Lynch v. Pan American World Airways, supra. And second, various courts have analogized backpay to the equitable doctrine of restitution. See, e. g., Robinson v. Lorillard Corp.,
444 F.2d 791, 802 (4th Cir. 1971), cert. dismissed,
404 U.S. 1006 , 92 S.Ct. 573, 30 L.Ed.2d 655 (1972); Equal Employment Opportunity Commission v. Detroit Edison Co.,
515 F.2d 301, 308 (6th Cir. 1975), vacated on other grounds,
431 U.S. 951 , 97 S.Ct. 2668, 53 L.Ed.2d 267 (1977); Harkless v. Sweeney Independent School District,
427 F.2d 319, 324 (5th Cir. 1970); and Demkowicz v. Endry, 411 F.Supp. 1184, 1191 (S.D.Ohio 1975). After a careful examination, we find both rationales to be of questionable merit in an action brought pursuant to § 1981.
The courts that have included backpay as an adjunct equitable remedy to reinstatement have analogized claims brought under § 1981 to Title VII claims, where there is seeming unanimity of judicial thinking interpreting that statute as providing solely equitable relief. See Johnson v. Georgia Highway Express, Inc.,
417 F.2d 1122, 1125 (5th Cir. 1975); Harmon v. May Broadcasting Co.,
583 F.2d 410 (8th Cir. 1978); Slack v. Havens,
522 F.2d 1091, 1094 (9th Cir. 1975); see also Hildebrand v. Board of Trustees of Michigan State University,
607 F.2d 705 (6th Cir. 1975); and Comment, Developments Title VII, 84 Harv.L.Rev. 1109, 1265-66 (1971). While Congress apparently intended only court granted relief in Title VII, see Curtis v. Loether, supra, 415 U.S. at 197, 94 S.Ct. at 1009; Lorillard v. Pons, supra, 434 U.S. at 584-85, 98 S.Ct. at 872, no such limitation is apparent under § 1981. See Johnson v. Railway Express Agency, supra, 421 U.S. at 459-60, 95 S.Ct. at 1719-1720. Further, the judicial analysis that has construed backpay as incidental to reinstatement appears to be the theoretical equivalent of the repudiated "clean-up doctrine" in equity. See Dairy Queen v. Wood,
369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962); Ross v. Bernhard,
396 U.S. 531, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970); and James & Hazard, Civil Procedure, Ch. 8 (2d ed. 1977).
Implicit within the analysis used by courts holding that backpay should be awarded as an incident to reinstatement is the recognition that backpay is somehow dissimilar to traditional equitable remedies. Some courts have attempted to liken backpay to a form of restitution in order to characterize backpay as equitable. See Equal Employment Opportunity Commission v. Detroit Edison Co., supra; Robinson v. Lorillard Corp., supra ; and Demkowicz v. Endry, supra. Such characterization appears to us to misconceive the concept of restitution. In essence, restitution seeks to return to an injured party that which a wrongdoer has taken away. See Restatement, Restitution, § 1-2 (1937); Samuel v. University of Pittsburgh, 375 F.Supp. 1119, 1135 (W.D.Pa.1974); Newco Land Co. v. Martin, 358 Mo. 99, 213 S.W.2d 504, 510 (Mo.1948); Savage-Scofield Co. v. City of Tacoma, et al., 105 P. 1032 (Wash.1909). In many instances of § 1981 discrimination in an employment context, the injured party has not conferred any benefit on the alleged wrongdoer that would warrant a restitutionary recovery for backpay. This is certainly true, as here, in a case of wrongful refusal to hire. But, it is also true in many situations of unlawful firings and unlawful failures to promote. See Comment, Developments Section 1981, supra, 15 Harv.Civ.Rights Civ.Lib.L.Rev. at 250.
In our view, the remedy of backpay in § 1981 cases is more appropriately characterized as a compensatory, legal damage. A number of district courts already have adopted this view. See Santos v. Mt. Sinai Hospital, supra; Partin v. St. Johnsbury Co., Inc., 447 F.Supp. 1297, 1303 n.6 (D.R.I.1978); Devore v. Edgefield County School District, 68 F.R.D. 423, 427 (D.S.C.1975). We conclude that backpay or lost wage determinations are inherently in the nature of legal damages. The calculations necessary to determine the hours of lost work stemming from a § 1981 violation are straight forward damage computations certainly within the practical capabilities of juries. See, e. g., Pons v. Lorillard, supra, 549 F.2d at 954. In sum, we hold that the district court erred in denying appellant's demand for jury trial on all of his legal claims including his claim for backpay.
In anticipation of the foregoing conclusion, appellees argued that the evidence presented at trial failed to develop a submissible case. After a very careful review of the entire record in this case, it is apparent that there was a marked degree of conflicting evidence that should appropriately be assessed by a jury. As such, we are satisfied that it is not possible to conclude as a matter of law that the appellees failed to produce a submissible case on the issues of liability or damages. See generally Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd.,
369 U.S. 355, 360, 82 S.Ct. 780, 783, 7 L.Ed.2d 798 (1962); and Madrid v. Mine Safety Appliance Co.,
486 F.2d 856 (10th Cir. 1973).
II.
We are next confronted with appellees' difficult argument that even if they had engaged in discriminatory practices regarding appellant, they did so "lawfully" insofar as they were attempting to comply with a governmentally encouraged affirmative action plan. Essentially, appellees contend that their reliance on their affirmative action plan adopted pursuant to Executive Order 11246 constitutes an absolute bar to a cause of action under § 1981 by a white individual for alleged racial discrimination. Appellant argues that when he applied for employment with appellees he was told, in effect, that if he were black he would have been hired. As such, appellant's position is that appellees' "but for" conduct states a violation of § 1981 and appellant should be able to proceed with an action for money damages.
The threshold issue that we must determine is whether appellant has arguably stated a cause of action under § 1981 based on his allegations. The Supreme Court has grappled with the concept of "reverse discrimination" in a number of recent decisions. See Franks v. Bowman Transportation Co.,
424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976); University of California Regents v. Bakke,
438 U.S. 265 , 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978); United Steelworkers of America v. Weber,
443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979); Fullilove v. Klutznick, --- U.S. ----, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980). The entire history of judicial analysis in this troubling area has been checkered. See Boyd, Affirmative Action in Employment The Weber Decision, 66 Iowa L.Rev. 1 (1980); and United States v. City of Miami, Fla.,
614 F.2d 1322, 1337 (5th Cir. 1980). Nevertheless, the Supreme Court in Weber has indicated that no absolute bars may be erected that completely preclude the advancement of white individuals. United Steelworkers of America v. Weber, supra, 443 U.S. at 208, 99 S.Ct. at 2726; see also University of California Regents v. Bakke, supra ; and Moseley v. Goodyear Tire & Rubber Co.,
612 F.2d 187, 191 (5th Cir. 1980). We believe that under appellant's version of the facts in this action there is established a cause of action under § 1981. Assuming appellant was told that but for his race a job would have been available to him, then appellees have created an absolute preclusion of whites from consideration for employment. Appellees' argument that reliance on their affirmative action program gives them, in essence, a license to discriminate on racial grounds cannot be accepted. We refuse to agree that the institution of an affirmative action plan absolutely sanctions racial discrimination. While we agree that the government as well as private employers have an interest in promoting the substantial societal goal of advancing the concept of affirmative action, we do not agree that an employer solely on the basis of race can refuse to even consider the application of a white individual. Such a practice, in our view, creates the type of absolute bar or preclusion forbidden by the Supreme Court.
This determination in light of the damage action nature of this case leads us into the uncharted area of the relief available to appellant. Given that the Supreme Court has seemingly approved certain voluntary affirmative action programs that address racial imbalances in actions seeking injunctive relief, see United Steelworkers of America v. Weber, supra, there are still unresolved questions regarding the nature of the legal relief, if any, that a white employee or applicant who is subjected to an illegal implementation of an affirmative action plan is entitled.
In this appeal we are presented with a claim exclusively for money damages. The Supreme Court in Franks v. Bowman Transportation Co., supra, left unanswered the question of whether an employee who is adversely affected by an affirmative action plan has a cause of action for money damages. Chief Justice Burger, while concurring in part and dissenting in part, noted that
... competitive-type seniority relief at the expense of wholly innocent employees can rarely, if ever, be equitable if that term retains traditional meaning. More equitable would be a monetary award to the person suffering the discrimination .... Such monetary relief would serve the dual purpose of deterring wrongdoing by the employer or union or both as well as protecting the rights of innocent employees. Id. at 780-81, 96 S.Ct. at 1271; see also the majority opinion at 777 n.38, 96 S.Ct. at 1270 n.38.
And, Justice Powell observed that
(t)he second, and in my view controlling distinction between these types of relief is the impact on other workers. As noted above, the granting of backpay and of benefit-type seniority furthers the prophylactic and make whole objectives of the statute without penalizing other workers. But competitive seniority benefits, as the term implies, directly implicates the rights and expectations of perfectly innocent employees. The economic benefits awarded discrimination victims would be derived not at the expense of the employer but at the expense of other workers. Putting it differently, those disadvantaged sometimes to the extent of losing their jobs entirely are not the wrongdoers who have no claim to the Chancellor's conscience, but rather are innocent third parties.
Id. 424 U.S. at 788, 96 S.Ct. at 1276. See also Justice Powell's views in University of California Regents v. Bakke,
438 U.S. 265 , 310, 98 S.Ct. 2733, 2758, 57 L.Ed.2d 750 (1978).
Appellant argues that without a cause of action for money damages, he would bear the burden for correcting appellees' past history of discrimination that prompted the necessity for appellees' affirmative action plan. Thus, appellant submits that the appellees would remedy their past abuses during the interim period required to fulfill the goals of their affirmative action program at the appellant's expense. We agree that the proper allocation of the burden for rectifying past discrimination should be placed upon wrongdoing employers instead of innocent employees or applicants.
A number of courts have already recognized the utility of the monetary damage remedy outlined in Franks. See Myers v. Gilman Paper Corp.,
544 F.2d 837, 859 (5th Cir. 1977); Kizer v. Webster, 492 F.Supp. 1135, 1149-50 (D.D.C.1980); Harmon v. San Diego County, 477 F.Supp. 1084, 1092 (S.D.Cal.1979); McAleer v. American Tel. & Tel. Co., supra, 416 F.Supp. at 439-40; German v. Kipp, supra, 429 F.Supp. at 1338, n.25; and see Note, 26 DePaul L.Rev. 158 (1976); and Stern, Retroactive Seniority as a Remedy for Title VII Violations: Relief To Newly Hired and Incumbent Employees in Light of Franks v. Bowman, 22 Loyola L.Rev. 923 (1976). Similarly, in an action for money damages, we are persuaded that an alleged violation of § 1981 cannot be obviated by simple reliance upon an affirmative action plan. Therefore, we hold that appellees' efforts to institute an affirmative action plan do not bar appellant as a matter of law from seeking a monetary award from the jury for his legal claims.
Our conclusion is tempered with the recognition that allowing a white plaintiff a cause of action for money damages in an appropriate case places employers who are implementing affirmative action plans in potentially awkward positions. See Telephone Wkrs. v. New Jersey Bell Tel. Co., 450 F.Supp. 284, 298 (D.N.J.1977). Nevertheless, to conclude as appellees argue, that an employer who is attempting to implement an affirmative action plan is immune from suit under § 1981 would present a situation of fundamental unfairness. For instance, it is possible that an employer could be implementing an invalid plan, or even if valid, the employer could misapply it in a given situation. To deny any cause of action to a white individual merely because his employer or prospective employer asserts the existence of an affirmative action plan could create the potential for abuse by employers.
Having concluded that appellant is not absolutely barred from asserting his legal claims under § 1981, we must now clarify the relationship between appellant's cause of action and appellees' efforts to institute their affirmative action policies. In our view, appellees' alleged reliance upon their affirmative action plan creates factual questions for the jury both on the issues of the bona fide nature of the plan as well as on the proper implementation of the plan to appellant's application for employment. Thus, appellees' affirmative action plan should be treated as in the nature of an affirmative defense to a charge of racial discrimination under § 1981. To establish such a defense, the appellees will be required to produce evidence on the components of their affirmative action plan that will support an instruction for the jury regarding the requisite elements of a valid affirmative action plan. See generally University of California Regents v. Bakke, supra; United Steelworkers of America v. Weber, supra; Franks v. Bowman Transportation Co., supra, 424 U.S. at 772-73, 96 S.Ct. at 1267; Detroit Police Officers' Ass'n. v. Young, supra, 608 F.2d at 696; Moseley v. Goodyear Tire & Rubber Co., 612 F.2d at 191; Legal Aid Society of Alameda City v. Brennan,
608 F.2d 1319, 1343 (5th Cir. 1979); E. E. O. C. v. Contour Chair Lounge Co.,
596 F.2d 809, 814 (8th Cir. 1979). As a second step, appellees will be required to show that their decision not to hire appellant was based upon a proper implementation of a legitimate affirmative action plan in accordance with its provisions. In this manner, appellees will be able to bring forth evidence of their efforts to institute and effectuate a valid affirmative action plan as well as their desire to advance the desired social goals and objectives of their affirmative action program. In sum, the factual basis of appellees' defense of an affirmative action plan must be thoroughly tested before the appellees can be entitled to an instruction that will establish the defense of a legitimate, properly applied affirmative action plan to a set of factual allegations that would in the absence of such a plan produce a submissible cause of action under § 1981.
We realize that this appeal posits the difficult problem of reverse discrimination in the context of appellant's Seventh Amendment right to a jury trial. Nevertheless, we believe that the foregoing accommodation between the strongly competing interests presented in this appeal will allow for a full airing of this controversy. Appellant will not be prevented from attempting to establish the elements of a § 1981 cause of action and the appellees will be able to attempt to demonstrate the defense of a proper application of valid affirmative action policies to appellant's application for employment. We are persuaded that this procedure will afford the parties the fairest framework in which to present their case to the jury.
III.
Lastly, appellees argued that there is no cause of action for the retaliation appellant alleges under § 1981. Appellees' theory is essentially in two parts. First, appellees contend that there may be no racial connection between an applicant's complaint to the EEOC and the alleged retaliation. Second, appellees contend that the sole avenue to redress retaliation charges in an employment context is Section 704(a) of Title VII. Appellees reason that to allow a claim of retaliation against employers pursuant to § 1981 would subvert the procedural mechanisms established within Title VII to address retaliatory claims.
We do not accept appellees' contention that a retaliatory action against a prospective employee for attempting to enforce rights under § 1981 might not be based on any racial discrimination. While it is conceivable that an applicant could incorrectly believe that he or she was the victim of racial discrimination prompting the filing of a complaint, a retaliatory response by an employer against such an applicant who genuinely believed in the merits of his or her complaint would inherently be in the nature of a racial situation. See Winston v. Lear-Siegler, Inc.,
558 F.2d 1266 (6th Cir. 1977). Judicial recognition of appellees' distinction could lead courts into the factual mire of determining whether a retaliatory act was based purely on non-racial criteria. In any event, to deny appellant a cause of action for retaliatory acts resulting from pursuing a claim under § 1981 would have the effect of giving "impetus to the perpetuation of racial discrimination." Garcia v. Rush-Presbyterian-St. Luke's Medical Center, 80 F.R.D. 254, 266 (N.D.Ill.1978); accord, Winston v. Lear-Siegler, Inc., supra; Ragheb v. Blue Cross & Blue Shield of Michigan, 467 F.Supp. 94, 95-6 (E.D.Mich.1979); Fralin & Waldron, Inc. v. County of Henrico, Va., 474 F.Supp. 1315, 1322 (E.D.Va.1979); Liotta v. National Forge Co., 473 F.Supp. 1139, 1145-46 (W.D.Pa.1979); McClain v. Mack Trucks, Inc., 81 F.R.D. 730, 733 (E.D.Pa.1979); National Organization for Women v. Sperry Rand Corp., 457 F.Supp. 1338, 1346 (D.Conn.1978); Strozier v. General Motors, 442 F.Supp. 475, 480 (N.D.Ga.1975), appeal dismissed,
584 F.2d 755 (5th Cir. 1978); and see generally DesVergnes v. Sukonk Water Dist.,
601 F.2d 9 (1st Cir. 1979); DeMatteis v. Eastman Kodak Co.,
511 F.2d 306 (2d Cir. 1975); Windsor v. Bethesda General Hospital,
523 F.2d 891 (8th Cir. 1975); and Cubas v. Rapid Am. Corp., Inc., 420 F.Supp. 663 (E.D.Pa.1976).
Appellees rely heavily on the recent Supreme Court decision in Great American S. & L. Assn. v. Novotny,
442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979), for their argument that the sole remedy for retaliation claims in a race discrimination conflict is Title VII. Novotny held that the rights created by Title VII could not be asserted through 42 U.S.C. § 1985(c). The Supreme Court reasoned that since § 1985(c) created no substantive rights and is merely a remedial provision, to allow a claim under § 1985(c) based upon a right created by Title VII would allow a complainant to avoid "most if not all of (the) detailed and specific provisions of (Title VII)." Id. at 375-76, 99 S.Ct. at 2350-2351. Similarly, appellee argues that because appellant apparently failed to file his claim for retaliation with the EEOC in a timely fashion, pursuit of a § 1981 retaliation claim at this juncture would thwart the procedural mechanisms of Title VII. We do not agree.
Section 1981 creates substantive rights of its own that are redressable quite apart from Title VII. See Johnson v. Railway Express Agency, supra, 421 U.S. at 457-61, 95 S.Ct. at 1718-1720; and Liotta v. National Forge Co., supra, 473 F.Supp. at 1146. The Supreme Court in Novotny recognized this distinction in reviewing the effect of "contemporary legislation" on the 19th century Civil Rights Acts. "... (W)e held that the passage of Title VII did not work an implied repeal of the substantive rights to contract conferred by the same 19th century statute and now codified at 42 U.S.C. § 1981." Great American S. & L. Assn. v. Novotny, supra, 442 U.S. at 377, 99 S.Ct. at 2351 (citing Johnson v. Railway Express Agency, supra ). As Title VII and § 1981 involve two independent causes of action, the procedures that are a part of Title VII enforcement do not affect the ability of appellant to proceed with his § 1981 claims.
Therefore, we hold that a § 1981 cause of action encompasses appellant's allegations of retaliatory conduct by the appellees following the filing of appellant's claim for racial discrimination with the EEOC.
For the foregoing reasons, the judgment of the district court is reversed and this cause is remanded to the district court for a jury trial not inconsistent with this opinion.
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