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CARTER v. CITIBANK

October 15, 1986

ARTHUR THOMAS CARTER, JR., Plaintiff
v.
CITIBANK, et al., Defendants



The opinion of the court was delivered by: MCLAUGHLIN

MEMORANDUM AND ORDER

McLAUGHLIN, District Judge

 This case presents an issue of first impression: is a claimant under 28 U.S.C. § 1875 entitled to a jury trial?

 Facts

 Plaintiff has commenced suit against his former employer, alleging that he was discharged because of his service as a federal grand juror, in violation of 28 U.S.C. § 1875. Section 1875 was enacted as part of the Jury System Improvements Act of 1978. *fn1" It prohibits employers from discharging, threatening to discharge, intimidating, or coercing permanent employees by reason of their federal jury service. See 42 U.S.C. § 1875(a). Section 1875(b) provides that an employer found in violation of the statute

 (1) shall be liable for damages for any loss of wages or other benefits suffered by an employee by reason of such violation;

 (2) may be enjoined from further violations of this section and ordered to provide other appropriate relief, including but not limited to the reinstatement of any employee discharged by reason of his jury service; and (3) shall be subject to a civil penalty of not more than $1,000 for each violation as to each employee.

 Plaintiff's complaint demands, among other things, "[m]oney damages in the amount of $250,000.00" and includes a demand for a jury. Defendant has moved to strike the jury demand. For the reasons discussed below, the motion is denied.

 Discussion

 Plaintiff is entitled to a jury trial in this case if it is authorized either by the statute or by the Seventh Amendment. See, e.g., Curtis v. Loether, 415 U.S. 189, 191-92, 39 L. Ed. 2d 260, 94 S. Ct. 1005 (1974). Mindful of the Supreme Court's dictate that a court must first determine "'"whether a construction of the statute is fairly possible by which the [constitutional] question may be avoided,"'" Lorillard v. Pons, 434 U.S. 575, 577, 55 L. Ed. 2d 40, 98 S. Ct. 866 (1978) (brackets in original) (quoting United States v. Thirty-seven Photographs, 402 U.S. 363, 369, 28 L. Ed. 2d 822, 91 S. Ct. 1400 (1971) (quoting Crowell v. Benson, 285 U.S. 22, 62, 76 L. Ed. 598, 52 S. Ct. 285 (1932))), I turn to the question of whether section 1875 authorizes a jury trial.

 An examination of section 1875 and its legislative history discloses that Congress did not grant within the statute the right to a jury trial. To begin with, there is no explicit grant in the statute itself. See 28 U.S.C. § 1875. Compare 29 U.S.C. § 626(c)(2) ("In an action brought under [this section], a person shall be entitled to a trial by jury of any issue of fact in any such action for recovery of amounts owing as a result of a violation of this chapter, regardless of whether equitable relief is sought by any party in such action."). *fn2"

 This does not end the inquiry, however. In Lorillard v. Pons, supra, the Supreme Court found that Congress intended private claims arising under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et. seq. (1970 & Supp. IV), to be tried to a jury, although the statute at that time did not explicitly provide for such a right. *fn3" The Court noted that Congress incorporated the remedies and procedures of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et. seq., into the ADEA. Because courts had long held that private actions pursuant to the FLSA were triable to a jury, the Court inferred that Congress intended to incorporate the right to jury trial into the ADEA. Lorillard v. Pons, supra, 434 U.S. at 580-83.

 The Court found this inference buttressed by the language that Congress employed to describe available remedies under the ADEA. The ADEA empowers a court to grant "legal or equitable relief" and authorizes individuals to bring actions for "legal or equitable relief." See id. at 583 (emphasis in original) (quoting 29 U.S.C. § 626(b), (c)). Finding the word "legal" to be a term of art, the Court held that "by providing specifically for 'legal' relief, Congress knew the significance of the term 'legal,' and intended that there would be a jury trial on demand" to determine the damages issues. Id.

 Applying this analysis, I hold that section 1875 does not authorize a statutory right to jury trial. First, Congress did not incorporate an existing jury trial framework into section 1875, as it did with the ADEA. Because Lorillard v. Pons was based largely on such a framework, see Lorillard, supra, 434 U.S. at 580; Securities & Exchange Commission v. Commercial Chemical Securities, Inc., 574 F.2d 90, 96 (2d Cir. 1978), the absence of one here militates against finding congressional intent to authorize a jury trial under section 1875. Second, section 1875(b) does not characterize relief under the statute as "legal," which Lorillard v. Pons found to be a term of art indicative of congressional intent to authorize a jury trial. I take note of the fact that the statute provides that employers "shall be found liable" in the event of a violation. This authorization of mandatory relief, however, in the absence of other language in the statute indicating congressional awareness that it was authorizing legal relief, is insufficient to infer congressional intent to create a statutory right to jury. Finally, an examination of the ...


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