on defendants' motion in favor of all defendants on five of
plaintiff's seven claims and dismissing the plaintiff's
Complaint in its entirety as against defendants Gordon,
Silverbush and Stern. Subsequently, defendants made a motion to
reargue and a hearing was held on February 20, 1991. On April
5, 1991, the Court issued a decision which granted defendants'
motion for reargument. Upon reargument, the Court adhered to
its original decision. See Memorandum & Order, April 5, 1991.
773 F. Supp. at 565. Familiarity of the reader with these two
prior Orders of the Court is assumed.
Now, defendants move to strike the jury demand.
The Court has recently come to believe that Title VII cases
properly are triable with a jury. We begin our discussion of
the issue by pointing out that the Seventh Amendment provides
"[i]n Suits at common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be
preserved." The phrase "Suits at common law" refers to "suits
at which legal rights [are] to be ascertained and determined,
in contradistinction to those where equitable rights alone
[are] recognized, and equitable remedies [are] administered."
Chauffeurs, Teamsters and Helpers, Local No. 391 v. Terry, et
al., 494 U.S.558, 110 S.Ct. 1339, 1344, 108 L.Ed.2d 519
(1990), citing, Parsons v. Bedford, 28 U.S. (3 Pet.) 433,
447, 7 L.Ed. 732 (1830). "The right extends to causes of action
created by Congress." Tull v. U.S., 481 U.S. 412, 417, 107
S.Ct. 1831, 1835, 95 L.Ed.2d 365 (1987). "As the Court noted in
Beacon Theatres v. Westover, [359 U.S. 500, 501, 79 S.Ct.
948, 951, 3 L.Ed.2d 988 (1959)] `maintenance of the jury as a
factfinding body is of such importance and occupies so firm a
place in our history and jurisprudence that any seeming
curtailment of the right should be scrutinized with the utmost
care.'" Terry, 494 U.S. at ___, 110 S.Ct. at 1344 (quoting
Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 301, 79
L.Ed. 603 (1935)).
Defendants cite a wealth of authority from various Courts of
Appeal, all of which were decided before Terry supra, and
Lytle, infra, that stand for the proposition that a plaintiff
is not entitled to a jury trial in a case involving solely
Title VII issues. Olin v. Prudential Ins. Co. of America,
798 F.2d 1, 7 (1st Cir. 1986); Wade v. Orange County Sheriff's
Office, 844 F.2d 951, 953 (2d Cir. 1988); Keller v. Prince
Georges County, 827 F.2d 952, 955 (4th Cir. 1987); Ward v.
Texas Employment Commission, 823 F.2d 907, 908 (5th Cir1987);
EEOC v. Detroit Edison Co., 515 F.2d 301 (6th Cir. 1975);
Grayson v. Wickes Corp., 607 F.2d 1194, 1196 (7th Cir. 1979);
Bibbs v. Jim Lynch, 653 F.2d 316, 318 (8th Cir. 1981); Slack
v. Havens, 522 F.2d 1091, 1094 (9th Cir. 1975); Skinner v.
Total Petroleum, Inc., 859 F.2d 1439, 1443 (10th Cir. 1988);
and Lincoln v. Board of Regents, 697 F.2d 928, 934 (11th Cir.
In Terry, in which the Supreme Court considered the issue of
whether a litigant is entitled to a jury trial in an action for
breach of the duty of fair representation provided for by
Section 301 of the Labor Management Relations Act of 1947, the
Court affirmed the denial of a motion to strike the jury
demand. The Supreme Court discussed and considered analogous
claims in an attempt to determine whether a jury trial was
available in an action based on the duty of fair
In its analysis, the Supreme Court discussed in dicta whether
backpay claimed under Title VII, compared with the backpay
relief sought by respondents was legal or equitable relief and
stated that "[t]he Court has never held that a plaintiff
seeking backpay under Title VII has a right to a jury trial. . ."
Terry, 494 U.S. at ___, 110 S.Ct. at 1349. Without
deciding whether a Title VII plaintiff has a right to a jury
trial, the Court stated that it was not persuaded that the type
of relief sought in the duty of fair representation suit is
analogous to backpay sought in a Title VII suit. Id.
(citation omitted). The Court concluded that the motion was
properly denied by the District Court, holding that the Seventh
Amendment entitled the respondents to a jury trial on their
claim for monetary damages for breach of the statutory duty
imposed by Congress in Section 301.
In Lytle v. Household Manufacturing, Inc. dba Schwitzer
494 U.S. 545, 110 S.Ct. 1331, 108 L.Ed.2d 504 (1990), decided on
the same day as Terry, supra, the Supreme Court considered a
similar issue. In Lytle, a case which involved allegations of
retaliation, in violation of 42 U.S.C. § 2000e, et seq., and
termination on the basis of race in violation of 42 U.S.C. § 1981,
the Supreme Court stated in a footnote that it "has not
ruled on the question whether a person seeking relief under
Title VII has a right to a jury trial[.]" Lytle, 494 U.S. at
___, 110 S.Ct. at 1335. In Lytle, the District Court
dismissed the legal claims and held a bench trial on the Title
VII claims. This decision was affirmed by the Fourth Circuit
Court of Appeals without opinion. See Lytle v. Household
Manufacturing, Inc., 831 F.2d 1057 (1987).
On appeal, the decision of the District Court was vacated and
remanded. The Supreme Court concluded that the District Court
erroneously dismissed the legal claims and stated that "[b]ut
for the dismissal of Lytle's § 1981 legal claims, he would have
been entitled to a jury trial on all issues common to them and
his Title VII equitable claims, Curtis v. Loether,
415 U.S. 189, 196, n. 11, 94 S.Ct. 1005, 1009, n. 11, 39 L.Ed.2d 260
(1974), and the jury would have been required to resolve the
legal claims before the court considered the equitable claims."
494 U.S. 545, 110 S.Ct. at 1332.
In Terry, and again in Lytle, the Supreme Court has hinted,
but failed to provide more than a cryptic indication that a
Title VII litigant has a right to a jury trial. The tone of
this discussion seems totally inconsistent with the popularly
held assumption that there is no jury in a Title VII case as a
matter of black letter law.
In Vicinanzo v. Brunschwig & Fils, Inc., 739 F. Supp. 882
(S.D.N.Y. 1990), an action under ERISA wherein a disabled
beneficiary filed suit challenging cancellation of coverage
under a group medical, dental, and life policy and group
long-term disability policy, defendant filed a motion to strike
plaintiff's jury demand. This Court held that the plaintiff was
entitled to a trial before a jury on all contractual issues as
well as all mixed questions of law and fact. The Court stated
that Congress had reserved an implied statutory right to a jury
trial in ERISA cases. As with cases under ERISA, Title VII
cases are based on rights and remedies which are created by
statute and unknown to the common law. "Even where there is no
constitutional right to a jury trial, a court must examine the
statute which created the new right of action, . . . to
ascertain whether Congress impliedly provided a right to a jury
trial. The Seventh Amendment does not prevent Congress from
providing a right to a jury trial where a newly contrived
statutory remedy is made available to litigants." Vicinanzo,
739 F. Supp. at 885, citing The Propeller Genesee Chief v.
Fitzhugh, 53 U.S. (12 How.) 443, 13 L.Ed. 1058 (1851).
This Court believes that Congress did impliedly create such a
right under Title VII. The statute contains no language
expressly foreclosing a litigant's right to a trial by jury.
This is strong evidence that Congress did not intend to divest
Title VII litigants of the right. Vicinanzo, 739 F. Supp. at
885. The Supreme Court has twice suggested this to bench and
bar by mentioning the issue in a fashion which would be totally
unnecessary were this not so. All but two claims alleged in
this action have been dismissed. The two remaining claims (the
first and fourth) seek injunctive relief, as well as frontpay,
backpay and lost benefits; or in the alternative, reinstatement
to plaintiff's job as Executive Director for the City (See,
Complaint, p. 19).
As this Court stated in Vicinanzo, "[t]he Court [in Terry]
. . . held that the respondents' claim for backpay was not one
for restitution or disgorgement but rather for `wages and
benefits [respondents] would have received from [the employer]
had the Union processed the employees' grievance properly.'"
739 F. Supp. at 888 (citing, Terry, 494 U.S. at ___, 110 S.Ct.
at 1348). In addition, the Court in Terry noted "that actions
for breach of the duty of fair representation target `the wrong
done the individual employee[,]' (citations omitted) and, as
such, give rise to claims for compensatory backpay."
Vicinanzo, 739 F. Supp. at 888.
The case at bar is similar to Terry in that the plaintiff
here allegedly was wronged as
a result of the improper consideration the employer gave to the
fact that plaintiff had filed charges against the employer with
the State Division of Human Rights. The improper acts of the
plaintiff's employer were allegedly the direct result of
employment practices violative of 42 U.S.C. § 2000e, et seq.
The plaintiff is seeking legal relief in the form of front pay
and lost benefits as an alternative to the equitable remedy of
reinstatement. The Supreme Court, however, has stated that the
right to a jury trial is not determined exclusively by the
nature of the remedy sought. Consideration must also be given
to the nature of the issues involved. Terry, supra.
In Tull, supra, the Supreme Court considered whether the
right to a jury trial extends to 33 U.S.C. § 1319(d). The Court
reasoned that the text and legislative history of the statute
indicates that the statute authorizes a civil penalty to punish
culpable individuals, as opposed to statutes designed merely to
maintain the status quo or to extract compensation, the latter
remedies traditionally issued by courts of equity. Similarly,
42 U.S.C. § 2000e is a statute which exacts civil penalties to
punish culpable individuals.
Accordingly, this Court would deny the motion, based on the
foregoing reasoning and what we consider to be unmistakable
signals dropped by the Supreme Court in Terry and Lytle.
However, in a Second Circuit decision on June 27, 1991, in
Frasca v. R.M.G. Investigations and Ronald Goldstein, Docket
No. 91-7232, 940 F.2d 650 an unreported summary Order was
handed down by a prestigious panel wherein the Court held that
". . . appelant had no right to a jury trial on her Title VII
claim, see Wade v. Orange County Sheriff's Office,
844 F.2d 951, 953 (2d Cir. 1988), . . . ." We are instructed in the
summary order that "[t]his summary order will not be published
in the Federal Reporter and should not be cited or otherwise
relied upon in unrelated cases before this or any other Court."
Thus, this rather clear and recent pronouncement of the Second
Circuit has no precedential value for the purposes of the
pending case, and cannot be relied on as controlling here. It
is nevertheless a public record, created by judges assumed to
be fully familiar with the problem presented by the gratuitous
statements in Terry and Lytle.
The motion to strike the jury demand is granted.
This Court recognizes that plaintiff and his counsel share the
strong view that a jury should be used. Since this issue
involves a controlling question of law as to which there is
substantial ground for difference of opinion and an immediate
appeal from this order may materially advance the ultimate
termination of this litigation, this Court certifies this issue
pursuant to Section 1292(b) of Title 28 of the United States
Code in the event plaintiff desires to apply for such relief
and does so within ten (10) days after entry of this Order. The
Court reminds plaintiff, however, that he is under no
compulsion to proceed under Section 1292(b) and may appeal from
the final judgment following a bench trial, if so advised,
pursuant to 28 U.S.C. § 1291.
Following the expiration of ten (10) days and in the absence of
an application, this case will be listed as ready when reached
for trial to the Court without a jury.
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