to determine whether Congress intended that Act, or any portion of it, to be applied to pending cases. McLaughlin 784 F. Supp. 961 (N.D.N.Y. 1992).
a. The 1991 Act
The 1991 Act was enacted after a protracted legislative battle over the course of two years. See Fray, 960 F.2d 1370 (8th Cir. 1992) (noting that Congress' 1990 civil rights bill had been vetoed by President Bush). The Act was intended, at least in part, to "provide appropriate remedies for intentional discrimination and unlawful harassment in the workplace . . . [and] . . . to respond to recent decisions of the Supreme Court by expanding the scope of relevant civil rights statutes in order to provide adequate protection to victims of discrimination." 1991 Act, Section 3.
The text of the Act does not specifically state whether it is to be applied retroactively. The only provision regarding the statute's effective date is Section 402(a), which merely states that "except as otherwise provided, this Act and the amendments made by this Act shall take effect upon enactment." Because that language is ambiguous with regard to retroactivity, most courts have not relied on that provision to determine the issue. See McLaughlin, 784 F. Supp. 961 (N.D.N.Y. 1992).
While no other provision directly addresses the Act's effective date, two sections of the statute do include statements that those particular provisions are not to be applied retroactively.
Some courts have relied on this language to infer that Congress intended the rest of the Act be applied to pending cases. See Stender, 780 F. Supp. at 1304 (N.D. Cal. 1992) (if Act were to apply prospectively only, retroactivity language of these two sections would be "meaningless"); Graham, 782 F. Supp. at 76 (N.D. Ill., January 23, 1992) ("The Court is unwilling to emasculate these provisions by making them redundant."). In our view, however, Congress's silence on the retroactivity issue suggests that Congress did not resolve the issue. See McLaughlin, 784 F. Supp. 961 (noting that, in other contexts, Congress has been explicit with regard to the retroactive/prospective effect of new legislation); Maddox v. Norwood Clinic, Inc., 783 F. Supp. 582 (N.D. Ala. 1992) ("When Congress wants a statute to apply retroactively, it is quite capable of saying so in plain, unequivocal language."). As a result, we must look to the Act's legislative history to try to discern Congress's intent regarding retroactivity.
b. Legislative History
Congress initially tried to enact civil rights legislation in 1990, but did not succeed because President Bush vetoed the proposed bill, in part because of its "unfair retroactivity rules." See Fray, 960 F.2d 1370. When Congress resumed its efforts to draft such a bill in 1991, it omitted any direct reference to retroactivity. The President signed that bill, which is now known as the Civil Rights Act of 1991. The Eighth Circuit has relied on this series of events to find a congressional intent to have the statute applied prospectively only. Id. at 8 ("When a bill mandating retroactivity fails to pass, and a law omitting that mandate is then enacted, the legislative intent was surely that the new law be prospective only; any other conclusion simply ignores the realities of the legislative process.").
However, most courts addressing this issue have acknowledged that the legislative "history" for the 1991 Act is, at best, unclear,
and that the mere omission of a retroactivity provision in the face of a presidential veto does not necessarily indicate that Congress intended to have the statute applied prospectively.
To the contrary, if Congress's omission of language regarding retroactivity is "dispositive" of anything, "it is dispositive merely of Congress's intent to leave the retroactivity decision to the courts." Fray, 960 F.2d 1370, (Heaney, J., dissenting). The fact that the 1990 civil rights bill, which contained a retroactivity provision, passed both houses of Congress indicates that a majority of Congress favored retroactivity. Id. However, President Bush vetoed that bill, in part because of its explicit statement regarding retroactivity. Id. at 5 (citing 136 Cong. Rec. S.16562, daily ed. October 24, 1990). Congress was thus aware that the President was not likely to sign any civil rights legislation which contained an express retroactivity provision. Congress then passed a bill which left the issue ambiguous and which, given the unsettled state of the case law, allowed both supporters and non-supporters of retroactivity to assert that their views had prevailed. Id. at 10 (Heaney, J., dissenting) ("Congress . . . deliberately left the Act retroactivity-neutral, reserving the issue for the courts to decide. Taking advantage of the different rules in Bradley and Georgetown Hospital, both sides claimed victory."). Under these circumstances, we cannot conclude that Congress's actions indicate anything more than an intent to avoid resolving the retroactivity issue.
See McLaughlin, 784 F. Supp. 961 (N.D.N.Y. 1992) ("The legislative history [of the Act] shows that Congress was purposefully ambiguous on the issue of . . . retroactivity, thus intending to leave the issue for the judiciary to resolve."). Accordingly, we must analyze Supreme Court and Second Circuit authority on retroactivity.
c. Case Law Regarding Retroactivity
As noted above, the Supreme Court has issued two conflicting lines of opinions regarding the retroactivity of federal statutes. In Thorpe v. Housing Authority of City of Durham, 393 U.S. 268, 89 S. Ct. 518, 526-27, 21 L. Ed. 2d 474 91969), and again in Bradley, 416 U.S. 696, 94 S. Ct. 2006, 40 L. Ed. 2d 476 91974), the Court held that a court must "apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary." 94 S. Ct. at 2016. At the same time, the Court has acknowledged another "venerable" rule of statutory interpretation, "that statutes affecting substantive rights and liabilities are presumed to have only prospective effect." Bennett v. New Jersey, 470 U.S. 632, 105 S. Ct. 1555, 1560, 84 L. Ed. 2d 572 91985). See also Georgetown University Hospital, 109 S. Ct. at 471 ("Congressional enactments . . . will not be construed to have retroactive effect unless their language requires this result."). Justice Scalia has urged the Court to resolve this conflict, and has indicated that he would expressly overrule Thorpe and Bradley. See Kaiser, 110 S. Ct. at 1579 (Scalia, J., concurring). Thus far, the Court has declined the invitation to reconcile the two lines of precedent. See Kaiser, 110 S. Ct. at 1577 ("We need not in this case . . . reconcile the two lines of precedent . . . because under either view, where the congressional intent is clear, it governs.").
As noted previously, the Second Circuit has not yet addressed the Bradley/Georgetown University conflict, or the retroactivity of the 1991 Act, and it is difficult to discern how the Court would rule on that issue.
The Court has cited to Georgetown University only once, in a case involving the retroactive application of an agency ruling. Lehman v. Burnley, 866 F.2d 33, 37 (2d Cir. 1989). In Lehman, the Court did, however, emphasize that "retroactivity is not favored in the law . . ." Id.
On the other hand, the Second Circuit has expressly approved of and followed the Bradley rule on numerous occasions. For example, in Brown v. General Services Administration, 507 F.2d 1300 (2d Cir. 1974), aff'd, 425 U.S. 820, 96 S. Ct. 1961, 48 L. Ed. 2d 402 91976), the Second Circuit held that § 717(c) of the Equal Employment Opportunity Act of 1972, which added a private right of action for federal employees under Title VII, applied to pending cases. In so ruling, the Court "rejected the argument that when a statute does not specifically provide for retroactive application, the statute should be applied only prospectively," Von Allmen v. State of Connecticut Retirement Bd., 613 F.2d 356, 360 (2d Cir. 1979), and held that Bradley was controlling.
507 F.2d at 1305-06. In fact, the Second Circuit cited to Bradley quite recently, although the Court concluded that the statute at issue precluded retroactive application. See United States v. Colon, 961 F.2d 41 (2d Cir., 1992). See also Leake v. Long Island Jewish Medical Center, 869 F.2d 130 (2d Cir. 1989) (affirming district court's finding that Civil Rights Restoration Act of 1987 applied retroactively in absence of any indication of congressional intent).
Even when following Bradley, however, the Second Circuit has suggested that the presumption of retroactivity applies only to cases before an appellate court on direct review. See Colon, 961 F.2d 41 (referring to cases "on direct review"); Hegger v. Green, 646 F.2d 22, 26 (2d Cir. 1981) (citing Bradley for "well settled" rule that "on direct review an appellate court must apply the law in effect at the time it renders its decision"). This is consistent with Justice Scalia's persuasive argument that Bradley misstated the presumption of retroactivity originally set out in Thorpe, and expanded that principle to all cases pending at the time of a statutory amendment, rather than limiting it to cases in which the amendment occurs between the entry of judgment and decision on appeal. See Kaiser, 110 S. Ct. at 1583 (noting difference between two formulations of rule). While the Second Circuit has also used extremely broad language in approving Bradley,
the Court's willingness to cite the contrary rule in Lehman suggests that it too perceives the Supreme Court to be moving away from Bradley. Accordingly, we do not consider ourselves bound by that case or the presumption of retroactivity. Consistent with the general rule followed for decades prior to Bradley and the Supreme Court's most recent statements on the issue, we hold that where, as here, Congress has not clearly expressed an intention that a statute apply to pending cases, that statute shall have prospective effect only. The 1991 Act does not apply to Kelber's claims.
3. State Law Claims
Forest Datacom also moves for summary judgment on Kelber's state law claims. More specifically, Forest Datacom claims that (1) Kelber's claims for intentional infliction of emotional distress and prima facie tort must be dismissed because they are time-barred, or are preempted under § 301 of the Labor Management Relations Act and Workers Compensation statute, and because Kelber has failed to state a claim; and (2) Kelber's claim under the New York Human Rights Law is barred because she previously elected to pursue an administrative remedy before the New York Division of Human Rights. Because the Court concludes that Kelber's claims for intentional infliction of emotional distress and prima facie tort are barred by the statute of limitations, those claims are dismissed, and we need not address Forest Datacom's other arguments with regard to those claims. However, Kelber's claim under the New York Human Rights Law may proceed to trial.
a. Intentional Infliction of Emotional Distress/Prima Facie Tort
Kelber's employment was terminated on April 3, 1989. 9Kelber Notes at 10). This action was filed approximately fourteen months later, on June 4, 1990. Under current New York law, a one-year statute of limitations applies to claims for intentional infliction of emotional distress.
See Grant v. Pfizer, 683 F. Supp. 41 (S.D.N.Y. 1988); Misek-Falkoff v. International Business Machines Corp., 162 A.D.2d 211, 556 N.Y.S.2d 331 (1st Dept.), appeal denied, 560 N.Y.S.2d 990, 76 N.Y.2d 708, 561 N.E.2d 890 (1990). Because Kelber did not file her complaint within that one-year period, her claim for intentional infliction of emotional distress is time-barred and must be dismissed.
Kelber's claim for a prima facie tort must also be dismissed. In New York, a plaintiff may proceed under a prima facie tort theory, even if the facts of the case would also support another, traditional theory of relief. See L/M Ninety CM Corp. v. 2431 Broadway Realty Co., 170 A.D.2d 373, 566 N.Y.S.2d 277, 278 (1st Dept. 1991) ("The fact that some of the acts alleged may also constitute traditional tort causes of action does not require the dismissal of the prima facie tort claim."). However, a plaintiff cannot use the prima facie tort, which has a three-year limitations period, to avoid the shorter statute of limitations applicable to other intentional torts. See Jones v. City of New York, 161 A.D.2d 518, 555 N.Y.S.2d 788, 789 (1st Dept. 1990) (because "complete relief" was available under traditional tort theories of intentional infliction of emotional distress and wrongful eviction, dismissal of those claims on statute of limitations grounds requires dismissal of prima facie tort claim as well). Because Kelber failed to comply with the one-year statute of limitations applicable to her claim for intentional infliction of emotional distress -- a claim which would likewise provide her with "complete relief" -- her prima facie tort claim must also be dismissed.
b. New York Human Rights Law
Forest Datacom also moves to dismiss Kelber's claim under the New York Human Rights Law, on the grounds that Kelber has "elected" an administrative remedy rather than legal relief. Executive Law § 297(9) provides that if a party alleging sex discrimination files a complaint with the New York Division of Human Rights, that party is precluded from filing a discrimination complaint in a New York state court. See Executive Law § 297(9) ("Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of competent jurisdiction . . . unless such person had filed a complaint hereunder or with any local commission on human rights . . ."). Kelber did not file an administrative complaint at the state level. However, as required by Title VII, she did file a charge of discrimination with the EEOC, which complaint is automatically referred by the EEOC to the New York Division of Human Rights. See Dapelo v. Banco Nacional de Mexico, 767 F. Supp. 49, 52 (S.D.N.Y. 1991). The New York state courts have determined that a referral by the EEOC to a state agency constitutes an "election of remedies" under Executive Law § 297(9) and thus, also precludes state courts from exercising jurisdiction over discrimination claims.
Scott v. Carter-Wallace, Inc., 147 A.D.2d 33, 541 N.Y.S.2d 780, 783 (1st Dept.), app. dismissed, 551 N.Y.S.2d 903, 75 N.Y.2d 746, 551 N.E.2d 104 (1989).
We have held, consistent with the Second Circuit's ruling in Promisel v. First American Artificial Flowers, 943 F.2d 251, 256-58 (2d Cir. 1991), that a federal court may exercise pendent jurisdiction over discrimination claims under the Human Rights Law if the administrative complaint is dismissed, even if the dismissal is at the request of the plaintiff. Harrow, 1991 U.S. Dist. LEXIS 17483, 1992 WL 267766 at 2. See also Promisel, 943 F.2d at 257-58 ("Even at the request of the plaintiff, the administrative dismissals do not circumvent the operation of the election of remedies provision . . . We see no need to read in a restriction upon a plaintiff's ability to have such suits dismissed in order to bring state claims in an ongoing federal proceeding . . ."). Forest Datacom attempts to distinguish this case, however, claiming that Kelber merely "withdrew" her administrative complaint and that the New York Division of Human Rights did not dismiss the claim for administrative convenience. 9Reply at 25). It is true that the "closing statement" used by the Division indicates that the claim was "withdrawn by Complainant," not that it was dismissed for administrative convenience. 9Defendants' 3(g) Statement Ex. O). However, that statement is a one-page form which does not allow for much detail regarding each case. Nothing in the record indicates that a case designated "withdrawn by complainant" is not or could not also be considered a dismissal for administrative convenience. Moreover, in Promisel the Second Circuit assumed that a charge dismissed at the request of the plaintiff constitutes a administrative dismissal. 943 F.2d at 257. Under these circumstances, we do not find this case distinguishable from Promisel. Kelber may proceed to trial on her Human Rights Law claim.
For the foregoing reasons, defendants' motion for summary judgment is granted in part and denied in part. All claims against Forest Electric are dismissed, as are Kelber's disparate impact claims under Title VII and her claims for intentional infliction of emotional distress and prima facie tort. However, material questions of fact remain in dispute with regard to Kelber's other Title VII claims. Accordingly, that claim will proceed to trial, along with Kelber's claim under the New York Human Rights Law.
New York, New York, July 7, 1992
LOUIS J. FREEH, U.S.D.J.