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May 26, 1982

Michael THOMAS, Plaintiff,
RESORT HEALTH RELATED FACILITY, Jacqueline Kornegay, Monica Brown and Morris Tenanbaum, Defendants

The opinion of the court was delivered by: NEAHER


Plaintiff, a black male originally from Granada, West Indies, brought this action to redress alleged discrimination in employment, pursuant to the Civil Rights Act of 1866 and 1871, 42 U.S.C. § 1981, and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (1976). Invoking federal jurisdiction under 28 U.S.C. §§ 1331, 1343(4) and 42 U.S.C. § 2000e-5(f)(3), the complaint alleged that plaintiff's employer, Resort Health Related Facility ("Resort"), and the individual defendants Kornegay, Brown and Tenanbaum, supervisory and administrative personnel employed by Resort, discriminated against plaintiff during his employment at Resort because of his race, color, national origin and sex.

 Plaintiff worked for Resort as a personal care attendant from June 1975 to February 5, 1980, when he was informed of his suspension from work until a psychiatric evaluation could be obtained. This decision apparently grew out of plaintiff's discordant relations with a Resort nurse, Delores Charles. Allegedly, Resort refused to accept an evaluation plaintiff submitted, favorable to himself, and insisted that a Dr. Gold examine him. Plaintiff refused to undergo this examination, and he has not worked for Resort since February 1980. His complaint seeks injunctive and declaratory relief, reinstatement, back pay, and $ 200,000 in money damages for mental anguish, humiliation and loss of self respect.

 The action is now before the court upon several motions by defendants: (1) to strike plaintiff's jury demand, or, in the alternative, to bifurcate trial of liability and damages issues; (2) for a partial summary judgment limiting the period of plaintiff's potential back pay recovery to the date when plaintiff rejected defendants' unconditional offer of reinstatement, or if that is denied, to disqualify present counsel for the parties as witnesses who ought to testify at trial under N.Y. Judiciary Law, Code of Professional Responsibility, Disciplinary Rule 5-102(A); and (3) to dismiss plaintiff's claims of sex and national origin discrimination asserted under both Title VII and § 1981. For the reasons that follow, defendants' motion to strike the jury demand and to bifurcate the trial are denied, the back pay period is limited to the date when plaintiff rejected defendant's reinstatement offer, the motion to disqualify is denied, the national origin claim is limited to Title VII, and the sex discrimination claims are dismissed.

 In moving to strike plaintiff's jury demand, defendants have viewed the complaint as seeking essentially equitable relief (reinstatement and back pay) under both Title VII and § 1981. Further, defendants have relegated the claim for damages for mental anguish, embarrassment and humiliation to State tort law, on the ground that neither of the federal statutes involved permits recovery of such damages. Contending that plaintiff added this latter claim as an "afterthought" without factual support, merely to justify demanding a jury trial, defendants argue that established precedent denying a jury trial in "equitable" Title VII and § 1981 proceedings should not be evaded so transparently and that the action must be tried to the court.

 Although some courts have accepted such arguments in denying a request for a jury trial, e.g., Lynch v. Pan American World Airways, 475 F.2d 764, 765 (5th Cir. 1973) (unsupported allegations for compensatory damages insufficient to sustain jury demand), see also Seymore v. Reader's Digest Ass'n, Inc., 493 F. Supp. 257, 266-67 (S.D.N.Y.1980), careful consideration of the complaint and relevant authorities demonstrates that plaintiff is entitled to a jury trial in this case.

 The basic flaw in defendants' argument is that their reading of the complaint needlessly divorces the claim for psychological damages from federal law. While such damages may be unavailable in a Title VII proceeding, see, e.g., Whitney v. Greater New York Corporation of Seventh-Day Adventists, 401 F. Supp. 1363, 1370 (S.D.N.Y.1975), controlling and persuasive precedent indicates that they are a proper element of recovery in an action under § 1981, and remain such when a plaintiff joins claims under Title VII with the claims under § 1981.

 The Supreme Court in Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S. Ct. 1716, 44 L. Ed. 2d 295 (1975), held "that § 1981 affords a federal remedy against discrimination in private employment on the basis of race." 421 U.S. at 459-60, 95 S. Ct. at 1719-20. And the Court declared that whoever "establishes a cause of action under § 1981 is entitled to both legal and equitable relief, including compensatory and, under certain circumstances, punitive damages." Id. 421 U.S. at 460, 95 S. Ct. at 1720. Furthermore, the Court emphasized that "the remedies available under Title VII and under § 1981, although related and although directed to most of the same ends, are separate, distinct, and independent." 421 U.S. at 461, 95 S. Ct. at 1720. Accord, Claiborne v. Illinois Central R.R., 583 F.2d 143, 153-54 (5th Cir. 1978) (award of punitive damages under § 1981 upheld although joined with Title VII claims).

 Second, the nature of the relief available in actions brought under § 1981 clearly encompasses damages to compensate for the emotional injuries flowing from discrimination. In Sullivan v. Little Hunting Park, 396 U.S. 229, 238-40, 90 S. Ct. 400, 405-06, 24 L. Ed. 2d 386 (1969), the Supreme Court held that money damages may be recovered for violations of the Civil Rights Act of 1866 and 1871, 42 U.S.C. §§ 1981 and 1982. Building on this decision, the court of appeals in McCrary v. Runyon, 515 F.2d 1082, 1089 (5th Cir. 1975) (en banc), aff'd, 427 U.S. 160, 96 S. Ct. 2586, 49 L. Ed. 2d 415 (1976), upheld the trial court's award of damages for the embarrassment, humiliation and mental anguish that the plaintiffs had suffered as a result of being denied admission to private schools on account of their race. The court recognized that one purpose of the Congress that enacted § 1981 was "to remove the stigma which accompanied the disability under which the (former slaves) had labored," 515 F.2d at 1089, by means of the law's "plain command ... that those formerly enslaved henceforth shall be treated as having all the right and dignity of other people dwelling with them in a land of freedom." Id. Thus, the court of appeals ruled that

"a denial of those statutory rights is treatment of the victim as being subject to those earlier disabilities. It is an affront, of which embarrassment and humiliation are natural consequences. If the statute is to be enforced fairly, if injuries suffered directly because of its violation are to be fairly compensated, damages for embarrassment and humiliation must be recoverable in a case such as this." Id.

 The Supreme Court's later affirmance noted without questioning, only that the award had been made. 427 U.S. at 166 n. 4, 96 S. Ct. at 2592 n. 4. See Seaton v. Sky Realty Co., 491 F.2d 634, 637-38 (7th Cir. 1974) (action under § 1982 and 42 U.S.C. 3604; damages for humiliation based upon discriminatory refusal to negotiate sale of realty). *fn1"

 Against this background, several cases in which the Supreme Court has considered the jury trial question clearly establish plaintiff's right to a jury trial in this case, at least on some issues. In Curtis v. Loether, 415 U.S. 189, 94 S. Ct. 1005, 39 L. Ed. 2d 260 (1973), the Court held that the Seventh Amendment right to a jury trial in federal court actions at law also applies

"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 the ordinary courts of law." 415 U.S. at 194, 94 S. Ct. at 1008.

 While the Court cautioned that not every "award of monetary relief must necessarily be "legal' relief," id., 415 U.S. at 196, 94 S. Ct. at 1009, it readily concluded that the statutory discrimination claim before it, seeking compensatory damages under Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3612, was not equitable. Grounded in a prohibition of racial discrimination, the statutory claim could be likened to various common law tort actions, id., 415 U.S. at 195 & n. 10, 94 S. Ct. at 1009 & n. 10. "More important," the nature of the compensatory relief sought was "the traditional form of relief offered in the courts of law," viz., "actual and punitive damages." 415 U.S. at 196, 94 S. Ct. at 1009. Such damages, of course, are precisely the relief the Court sanctioned for §§ 1981 and 1982 claims in Sullivan v. Little Hunting Park, supra.

 Defendants have adduced nothing to establish that plaintiff did not suffer emotional harm as alleged, and their motion for summary judgment is therefore inadequate to remove this issue from the complaint. See Adickes v. S. H. Kress Co., 398 U.S. 144, 159-61, 90 S. Ct. 1598, 1609-10, 26 L. Ed. 2d 142 (1970). Plaintiff, accordingly, is entitled to have a jury determine the fact issues relating to his claim of employment discrimination under § 1981. Although some of these fact issues also pertain to plaintiff's claims under Title VII, the decisions in Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S. Ct. 948, 3 L. Ed. 2d 988 (1959), and Dairy Queen Inc. v. Wood, 369 U.S. 469, 82 S. Ct. 894, 8 L. Ed. 2d 44 (1962), require that any such issues be submitted to the jury prior to final court determination of equitable relief under Title VII.

 One further matter requires consideration in defining the issues to be submitted to the jury. This is whether plaintiff has presented a "legal" or an "equitable" claim by seeking an award of backpay. Depending upon the true nature of this claim, the jury may or may not be required to consider issues of relief besides the damages for plaintiff's emotional harm. Although the parties themselves have not directly addressed this question, it deserves discussion because a determination to deny ...

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