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BOSS v. BOARD OF EDUC.

July 6, 1992

THERESA BOSS, Plaintiff-Intervenor, -and- UNITED STATES OF AMERICA, Plaintiff, against BOARD OF EDUCATION, UNION FREE SCHOOL DISTRICT #6 (Hauppauge), Defendant.


The opinion of the court was delivered by: LEONARD D. WEXLER

 WEXLER, District Judge

 Theresa Boss ("plaintiff-intervenor" or "Boss") filed an initial sex discrimination complaint with the Equal Employment Opportunity Commission ("EEOC") on January 28, 1987, and filed an additional complaint with the EEOC on March 28, 1988. Boss alleges that the Board of Education, Union Free School District #6 ("the Board" or "defendant") violated Title VII of the Civil Rights Act of 1964 by failing to promote her because of her gender, and by later firing her for complaining about this alleged discrimination. The EEOC referred this matter to the Department of Justice, and the United States filed suit on these charges on January 28, 1992, pursuant to § 706 of Title VII, as amended, 42 U.S.C. § 2000e-5(f). Boss' motion to intervene as of right, pursuant to Rule 24(a) of the Federal Rules of Civil Procedure, was granted on March 19, 1992.

 The Civil Rights Act of 1991 (the "Act") was signed into law on November 21, 1991. Now before the Court is plaintiff-intervenor's motion to retroactively apply the jury trial and compensatory damages provisions of § 102 of the Act. *fn1" For the reasons stated below, plaintiff-intervenor's motion is denied.

 I. BACKGROUND

 According to plaintiff-intervenor's complaint, on January 1, 1986, defendant hired Boss as a part-time custodian. Boss alleges that on October 15, 1986 and on November 25, 1986, defendant hired less-qualified males to fill two full-time permanent custodian positions. On November 28, 1986, Boss wrote to Eugene Lesserson, President of the Board, to complain of this inequity. She now alleges that in retaliation for that complaint, she was dismissed from her position as a full-time substitute custodian on December 15, 1986.

 On January 7, 1987, defendant called Boss back to work on a "less-than-part-time basis" at different work locations, a situation allegedly designed to induce her to quit. On March 1, 1988, she was terminated from that position, allegedly because of the complaint she had filed with the EEOC on January 28, 1987.

 Boss further alleges that defendant discriminates against women as a class. She contends that only three of fifty-seven full-time permanent custodians who work for defendant are female, and those three work exclusively in areas of the schools that are restricted to females.

 II. DISCUSSION

 A. The Effective Date Provision of the 1991 Civil Rights Act

 Section 402(a) of the Act, the "Effective Date" provision, states that "except as otherwise specifically provided, this Act and the amendments made by this Act shall take effect upon enactment." However, two sections of the Act are explicitly prospective. Section 402(b), sub-headed "Certain Disparate Impact Cases," states: "Notwithstanding any other provision of this Act, nothing in this Act shall apply to any disparate impact case for which a complaint was filed before March 1, 1975, and for which an initial decision was rendered after October 30, 1983."

 Similarly, § 109(c), which applies Title VII to all United States citizens employed in foreign countries, states that "the amendments made by this section shall not apply with respect to conduct occurring before the date of the enactment of this Act." (emphasis added).

 Plaintiff-intervenor argues that §§ 402(b) and 109(c) can be read only as indicative of congressional intent to extend retroactive application to the remainder of the Act, and that a contrary interpretation would make the effective date provision redundant. See Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825, 837, 100 L. Ed. 2d 836, 108 S. Ct. 2182 (1988) ("we are hesitant to adopt an interpretation of a congressional enactment which renders superfluous another portion of that same law").

 However, to date, only two circuit courts of appeal have ruled on the issue of the Act's effective date, and both have found the statutory language unclear. Vogel v. Cincinnati, 959 F.2d 594, 597-98 (6th Cir. 1992) (finding that the Act should be applied prospectively); Fray v. Omaha World Herald Co., 960 F.2d 1370, 1376 (8th Cir. 1992) (same); see also Smith v. Petra Cablevision, No. 88-2091, 793 F. Supp. 417, 1992 U.S. Dist. LEXIS 7618, at *3 (E.D.N.Y. May 20, 1992) (same); Croce v. V.I.P. Real Estate, Inc., 786 F. Supp. 1141, 1143-44 (E.D.N.Y. 1992) (finding that the Act should be applied retroactively).

 Clearly, Congress is able to construct explicitly retroactive legislation when it so desires. In fact, § 15(a)(4) of the Civil Rights Act of 1990, an earlier version of the Act, stated that the provisions for jury trials, compensatory and punitive damages "shall apply to all proceedings pending on or commenced after the date of the enactment of this Act." That bill, however, was vetoed by President Bush, in part because of these "unfair retroactivity rules." 136 Cong. Rec. S16,562 (daily ed. Oct. 24, 1990).

 B. Congressional Intent to Overturn Supreme Court Decisions

 Section 3 of the Act states that it was designed to "respond to recent decisions of the Supreme Court by expanding the scope of relevant civil rights statutes . . . ." Pub. L. No. 102-166, § 3(4). *fn2" However, although the Act's general purpose is to restore the law to its state prior to these Supreme Court decisions, § 102's provisions are not restorative, but provide new remedies. Moreover, although plaintiff-intervenor may be correct in stating that it will be years before cases are affected ...


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