that third-party may be held liable under Title VII. Sibley Memorial Hospital v. Wilson, 488 F.2d 1338, 1341 (D.C. Cir. 1973) (covered employer may not discriminatorily interfere with an individual's employment opportunities with another individual).
Accordingly, Plaintiff will have an opportunity to conduct discovery to determine whether the American League was involved in her termination. The American League's motion for summary judgment on Plaintiff's termination claim is therefore denied without prejudice to its renewal after discovery has been completed.
B. Motion to Strike Jury Demand and Prayer for Compensatory and Punitive Damages
On November 21, 1991, President Bush signed into law the Civil Rights Act of 1991 (the "1991 Act"), Pub. L. No. 102-166, 102 Stat. 1071 (1991) (to be codified at 42 U.S.C. § 2000e et seq.). The 1991 Act amended the Civil Rights Act of 1964, inter alia, to grant Title VII plaintiffs the right to trial by jury and the right to seek compensatory and punitive damages in cases of intentional employment discrimination. 1991 Act, § 102(b)-(c). Defendants move to strike Plaintiff's request for a jury trial and prayer for compensatory and punitive damages on the ground that the 1991 Act should not be applied retroactively to conduct which occurred prior to the date of its enactment.
In Wisdom v. Intrepid, No. 91 Civ. 4439, 1992 U.S. Dist. LEXIS 9424 (S.D.N.Y. 1992), this Court ruled that the damage and jury trial provisions of the 1991 Act should be applied retroactively to a case that was filed before the passage of the 1991 Act, and that complained of conduct that occurred prior to the passage of the Act. Here, Plaintiff also complains of conduct that occurred prior to the passage of the Act, but her action was commenced after the Act's passage. Therefore, the case for retroactivity here may be even stronger than it was in Wisdom. See Wisdom, 1992 U.S. Dist. LEXIS at *8 n.5 (citing Luddington v. Indiana Bell Telephone Co., 966 F.2d 225, 1992 U.S. App. LEXIS 13450, at *3-4 (7th Cir. June 15, 1992)).
In Wisdom, this Court noted the apparent tension between two lines of Supreme Court case law which address the retroactive application of statutes. In Bradley v. Richmond School Board, 416 U.S. 696, 711, 40 L. Ed. 2d 476, 94 S. Ct. 2006 (1974), the Court ruled that a statute could be applied to conduct pre-dating its enactment, reasoning that "a court is to 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." Accord Thorpe v. Housing Authority of Durham, 393 U.S. 268, 21 L. Ed. 2d 474, 89 S. Ct. 518 (1969). In Bowen v. Georgetown University Hospital, 488 U.S. 204, 208, 102 L. Ed. 2d 493, 109 S. Ct. 468 (1988), however, the Court endorsed the opposite rule, holding that "congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result."
In Wisdom, 1992 U.S. Dist. LEXIS at*13-14, this Court declined to "read the tea leaves" and predict that the Supreme Court would overrule the Thorpe -Bradley line of cases. Reasoning that it is not within the province of lower courts to determine when decisions in one line of cases effectively overrule Supreme Court decisions in another line of cases, the Court instead adopted an analysis under which the tension between the two lines of cases could be reconciled. The Court determined that absent a clear legislative intent, where a new statute effects procedural or remedial changes, the trial court should apply those changes retroactively. Where substantive legislation is involved, however, the court should apply the legislation only prospectively. This Court found that the jury trial and damage provisions of the 1991 Act were procedural and remedial respectively and applied them retroactively. Wisdom, 1992 U.S. Dist. LEXIS at * 17-19. The same provisions of the Act found procedural and remedial in Wisdom are at issue in the instant case, thus warranting a similar decision.
The Court therefore adheres to its prior determination not to predict which line of cases the Supreme Court will follow. The Supreme Court has specifically admonished the courts of appeal not to engage in such guesswork, and this warning applies with equal if not greater force to the district courts. See Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 104 L. Ed. 2d 526, 109 S. Ct. 1917 (1989).
Furthermore, respect for the values embodied in the phrase "rule of law" compels the district courts to follow precedent as set forth by the Supreme Court and by the court of appeals for the relevant circuit. When a court rules on the basis of prediction of what the Supreme Court will do rather than on precedent, it encourages the perception that decisions of the Supreme Court are based on personal views of the individual members of the Court, and not on analysis of the plain meaning of statutes, legislative history, and legal precedent, i.e. the common law. Thus, engaging in prediction tends to lessen the respect for the Supreme Court as an institution and to increase the risk of public rejection of its decisions. As the Supreme Court has recently observed in the context of a discussion of stare decisis, "The very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable." Planned Parenthood of Southeastern Pennsylvania v. Casey, 120 L. Ed. 2d 674, 1992 U.S. LEXIS 4751, 112 S. Ct. 2791, at*40 (June 29, 1992) (citing Powell, Stare Decisis and Judicial Restraint, 1991 J. Sup. Ct. Hist. 13, 16).
Accordingly, based on the legal precedents contained in the Supreme Court decisions discussed in Wisdom, the Court concludes that the provisions of the 1991 Act at issue here should apply retroactively. Defendants' motions to strike are denied.
II. CLAIMS UNDER NEW YORK HUMAN RIGHTS LAW
A. Subject Matter Jurisdiction
New York's Human Rights Law contains an election of remedies provision which states:
Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction for damages and such other remedies as may be appropriate, unless such person had filed a complaint hereunder with any local commission on human rights, . . . provided that, where the division has dismissed such complaint for administrative convenience, such person shall maintain all rights to bring suit as if no complaint had been filed.
N.Y. Exec. L. § 297(9). Plaintiff filed charges of discrimination with the EEOC against the American League and the National League, and the EEOC in turn referred Plaintiff's complaints to the New York State Division of Human Rights ("SDHR"). Shulman Aff., Exhs. A-B. Plaintiff also filed an EEOC charge against BOUD, and the EEOC filed the charge with the St. Petersburg Human Relations Department ("St. Petersburg HRD"), a local commission on human rights. BOUD 3(g) Stmt. PP1-2.
Defendants maintain that because Plaintiff filed complaints with local commissions on human rights, the election of remedies provision divests this Court of subject matter jurisdiction. Plaintiff notes that she did not file any complaints with the SDHR or the St. Petersburg HRD. Rather, the EEOC referred her complaints to those local commissions. Therefore, because she made no meaningful election of remedies, she argues that her claims should not be barred by § 287(9).
In Scott v. Carter-Wallace, Inc., 147 A.D.2d 33, 541 N.Y.S.2d 780 (1st Dep't 1989), appeal dismissed, 75 N.Y.2d 764, 551 N.Y.S.2d 903, 551 N.E.2d 104 (1989), the court noted that a jurisdictional anomaly results when a plaintiff attempts to sue under both Title VII and the Human Rights Law. Title VII requires the plaintiff first to file with a state or local anti-discrimination commission. The election of remedies provision of the Human Rights Law, however, provides that such a filing bars later suit in a judicial forum. Id. at 782. Despite this anomaly, the court specifically rejected the argument that the plaintiff himself, and not the EEOC, must file with the state or local commission to constitute a valid election of remedies under § 297(9). Id. at 782-3. Accord Promisel v. First American Artificial Flowers, Inc., 943 F.2d 251, 257 (2d Cir. 1991) (under New York law, EEOC's automatic referral of a discrimination complaint to the SDHR "is deemed to exercise plaintiff's option for an administrative forum" and bars plaintiff from pursuing the claim in a judicial forum), cert. denied, 117 L. Ed. 2d 110, 112 S. Ct. 939 (1992); Cholewa v. New York News Inc., No. 89 Civ. 4929, 1991 U.S. Dist. LEXIS 13253 (S.D.N.Y. Sept. 23, 1991). Accordingly, Plaintiff's argument that she did not elect an administrative remedy is rejected.
Plaintiff maintains that regardless of whether she elected an administrative remedy, her Human Rights Law claims against the American League and National League should not be barred because those claims fall within § 297(9)'s express exception for dismissals for administrative convenience. In support thereof, she attaches copies of the SDHR's May 1, 1992 "Administrative Convenience Dismissal" of her American League and National League complaints. Affidavit of Gregory Merz, sworn to on April 6, 1992, Exhs. A-B.
Defendant notes that the SDHR sent Plaintiff letters dated May 22, 1990 acknowledging its receipt from the EEOC of Plaintiff's complaints against the National League and American League. Those letters advised Plaintiff that her complaints would be kept on file by the SDHR until the EEOC reported the results of its investigation. After notification of the EEOC's determination, Plaintiff was required to notify the SDHR whether: (1) having received an unfavorable EEOC determination, she wished to provide newly discovered information to the SDHR; or (2) having received a favorable EEOC determination, she wished to proceed to a public hearing before the SDHR. If Plaintiff failed to notify the SDHR of her intentions within the 30-day period, her complaints would be administratively closed. Shulman Aff., Exhs. A-B.
Plaintiff received the EEOC's unfavorable determination of her complaints on October 21, 1991. Complaint P1. Defendants assert, and Plaintiff does not deny, that Plaintiff did not contact the SDHR until March 23, 1992, long after the 30-day period expired. By letter of that date, Plaintiff's attorneys wrote to the SDHR requesting dismissals for administrative convenience to permit the instant lawsuit. American League Reply Mem. at 13-14. Thus, Defendants argue that the Court should find the SDHR's administrative convenience dismissals void because (1) the dismissals were obtained solely to allow the instant litigation, and (2) the SDHR reopened Plaintiff's cases that were, or should have been, administratively closed merely to effect dismissals for administrative convenience.
In Drummer v. DCI Contracting Corp., 772 F. Supp. 821 (S.D.N.Y. 1991), the court rejected the defendant's argument that a dismissal for administrative convenience obtained by the plaintiff solely to permit it to pursue judicial relief was arbitrary and therefore void. The court determined that the applicable New York regulation specifically endorses dismissal for administrative convenience where such dismissal is obtained solely to permit the plaintiff to pursue a judicial action.
Id. at 830. Accord Realmuto v. Yellow Freight System, Inc., 712 F. Supp. 287, 290-91 (E.D.N.Y. 1989) (administrative convenience dismissal was proper where plaintiff requested dismissal so that he could bring judicial action).
As for Defendants' argument that the SDHR's opening of a closed complaint simply to effect a dismissal for administrative convenience is arbitrary, Defendants cite no regulation, statute, or case law in support of their position. The applicable regulation provides that the SDHR has "unreviewable discretion" to dismiss a complaint for administrative convenience prior to a public hearing. 9 NYCRR § 465(d)(2)(vi)(1). Thus, the State has mandated that courts defer to the SDHR's determinations in this area.
Accordingly, the Court has jurisdiction over Plaintiff's Human Rights Law claims against Triple-A, the American League and the National League. Because Plaintiff has not shown that her complaint filed with the St. Petersburg HRD was dismissed for administrative convenience, the EEOC's filing of that complaint bars the prosecution of Plaintiff's Human Rights Law claim against BOUD.
B. Motion to Strike Jury Demand and Prayer for Punitive Damages
Defendants move to strike Plaintiff's demand for trial by jury and prayer for punitive damages with respect to her Human Rights Law claims.
It is well settled that there is a right to a trial by jury under the Human Rights Law. See Scott, 541 N.Y.S.2d at 781; O'Brien v. King World Productions, Inc., 669 F. Supp. 639, 641-42 (S.D.N.Y. 1987). Punitive damages are not, however, available under the statute. Tyler v. Bethlehem Steel Corp., 958 F.2d 1176 (2d Cir. 1992). Accord Conan v. Equitable Capital Management Corp., 774 F. Supp. 209 (S.D.N.Y. 1991).
Accordingly, as to Plaintiff's Human Rights Law claims, the motion to strike Plaintiff's jury demand is denied, and the motion to strike the prayer for punitive damages is granted.
III. RESTRAINT OF TRADE CLAIMS
Defendants move to dismiss Plaintiff's state law restraint of trade claims for lack of subject matter jurisdiction and for failure to state a claim, arguing that the claims are preempted by baseball's exemption to antitrust law.
The Supreme Court created the so-called "baseball exemption" in Federal Baseball Club, Inc. v. National League of Professional Baseball Clubs, 259 U.S. 200, 66 L. Ed. 898, 42 S. Ct. 465 (1922). The plaintiff baseball club had refused to sign an agreement between the two major leagues and found itself without teams to play. It sued under the Sherman Act charging that the two leagues had conspired to monopolize the baseball business by means of the league structure and the "reserve system."
In an opinion by Justice Holmes, the Court ruled that exhibitions of baseball were purely state affairs and were not trade or commerce in the ordinary use of those words. Thus, because the baseball did not operate in interstate commerce, it was not subject to the Sherman Act. Id. at 208-209.
The Court revisited the baseball exemption in Toolson v. New York Yankees, Inc., 346 U.S. 356, 98 L. Ed. 64, 74 S. Ct. 78 (1953), this time in the context of a suit by major league players against team owners and the Commissioner of Baseball for antitrust violations. The players alleged that the reserve clauses in their contracts and the nationwide agreements among clubs in the various leagues created a monopoly. The Court adhered to Federal Baseball, reasoning that congressional inaction for 30 years after that decision indicated that Congress "had no intention of including the business of baseball within the scope of the federal antitrust laws," and "that if there are evils in this field which now warrant application to it of the antitrust laws it should be done by legislation." Id. at 357.
The Toolson Court expressly declined to re-examine the legal basis of Federal Baseball, namely that baseball did not affect interstate commerce. The Court itself has viewed Toolson not as an affirmation of the doctrinal validity of Federal Baseball, but rather as "a narrow application of the rule of stare decisis." United States v. Shubert, 348 U.S. 222, 99 L. Ed. 279, 75 S. Ct. 277 (1955). Indeed, Federal Baseball and Toolson have been subject to substantial criticism. Judge Friendly, writing for the Second Circuit, commented, "We freely acknowledge our belief that Federal Baseball was not one of Mr. Justice Holmes' happiest days [and] that the rationale of Toolson is extremely dubious . . ." Salerno v. American League of Professional Baseball Clubs, 429 F.2d 1003, 1005 (2d Cir. 1970), cert. denied, 400 U.S. 1001, 91 S. Ct. 462, 27 L. Ed. 2d 452 (1971).
The Supreme Court revisited the baseball exemption once more in Flood v. Kuhn, 407 U.S. 258, 284, 32 L. Ed. 2d 728, 92 S. Ct. 2099 (1972). St. Louis Cardinal Curtis Flood sued the Commissioner of Baseball, the presidents of the American and National Leagues, and the owners of the 24 major league teams, alleging antitrust violations after he was traded without consultation to the Philadelphia Phillies in a multi-player deal. The Court found that "professional baseball is a business and it is engaged in interstate commerce," thus removing the foundation of Federal Baseball. Nevertheless, the Court ruled that the plaintiff's suit was barred, concluding that the baseball exemption:
is an aberration that has been with us now for half a century, one heretoforeto deemed fully entitled to the benefit of stare decisis, and one that has survived the Court's expanding concept of interstate commerce. It rests on a recognition and acceptance of baseball's unique characteristics and needs.
Id. at 282. In light of Congress' long standing acceptance of the exemption, the Court declined to remove baseball's immunity from federal antitrust law. Id. at 284-85.
The Court also addressed the validity of plaintiff's claims under state antitrust law. Judge Cooper of this Court had rejected these claims on the ground that state antitrust regulation would conflict with federal policy and because national "uniformity [is required] in any regulation of baseball and its reserve system." Flood v. Kuhn, 316 F. Supp. 271, 280 (S.D.N.Y. 1970). The Second Circuit affirmed, stateing, "As the burden on interstate commerce outweighs the states' interests in regulating baseball's reserve system, the Commerce Clause precludes the application here of state antitrust law." Flood v. Kuhn, 443 F.2d 264, 268 (2d Cir. 1971). The Supreme Court quoted these statements with approval and affirmed the dismissal of plaintiff's state law claims.
Defendants assert that Plaintiff's common law restraint of trade claims are preempted and therefore barred by the baseball exemption. Plaintiff responds that her claims are not preempted because the baseball exemption is not so broad as to immunize baseball from claims arising from its relationship with its umpires.
In California v. ARC America Corp., 490 U.S. 93, 104 L. Ed. 2d 86, 109 S. Ct. 1661 (1989), the Supreme Court considered the preemptive effect of federal antitrust law, specifically of § 4 of the Clayton Act. The Court ruled that the federal law's limitation on recovery to direct purchasers did not preempt state antitrust laws that permitted recovery by both direct and indirect purchasers. In so ruling, the Court noted that federal law will preempt state law in three situations: (1) where there is an express statement by Congress indicating an intention that state law be preempted; or (2) even in the absence of such a statement, where Congress intends that federal law occupy a given field; or (3) where state law conflicts with federal law. Id. at 100.
Because the baseball exemption results from congressional silence, there has been no express statement by Congress that state law be preempted. See Flood, 407 U.S. at 283-84. It is also clear that Congress has not expressed its intent to occupy the field of anti-trust law. "Congress intended the federal anti-trust laws to supplement, not displace, state anti-trust remedies." ARC America, 490 U.S. at 102. Thus, the only possible basis for preemption is if application of state law in this case would conflict with the baseball exemption.
Because the Federal Baseball, Toolson, and Flood cases considered the baseball exemption in very limited contexts, i.e. with regard to baseball's reserve clause and to its league structure, those opinions give little guidance in determining the breadth of baseball's immunity to antitrust liability. The Court has not specifically determined whether the exemption applies to baseball's conduct outside the domain of league structure and player relations. However, the Flood Court stated that the immunity "rests on a recognition and acceptance of baseball's unique characteristics and needs," suggesting that baseball might not be exempt from liability for conduct not touching on those characteristics or needs. Flood, 407 U.S. at 282.
The Wisconsin Supreme Court endorsed a limited view of the baseball exemption in State v. Milwaukee Braves, Inc., 31 Wis. 2d 699, 144 N.W.2d 1 (Wis.), cert. denied, 385 U.S. 990, 17 L. Ed. 2d 451, 87 S. Ct. 598 (1966), wherein it rejected a challenge under Wisconsin antitrust law to baseball's decision to move the Milwaukee Braves to Atlanta. The court found that because the issue touched on league structure, application of state antitrust law would conflict with the baseball exemption. Id. at 17. Importantly, however, the court noted:
We venture to guess that this exemption does not cover every type of business activity to which a baseball club or league might be a party and does not protect clubs or leagues from application of the federal acts to activities which are not incidental to the maintenance of the league structure, but it does seem clear that the exemption at least covers the agreements and rules which provide for the structure of the organization and the decisions which are necessary steps in maintaining it.