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September 1, 1992



The opinion of the court was delivered by: ROBERT L. CARTER

ROBERT L. CARTER, District Judge

 Plaintiffs Susan Q. Bridges, Virginia D'Aponte and Kimberly Muryasz bring this action against defendants Eastman Kodak Company, Yourdon, Inc., Thomas A. Walker, John Kucik, Michael French, Kevin Cash, Mary Heaphy and David Offenhartz alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (as amended by the Civil Rights Act of 1991), and alleging pendent claims based on the New York Human Rights Law, N.Y. Exec. Law § 296(1)(a) (McKinney 1982). Plaintiffs allege that beginning in 1989, while plaintiffs were employed by Yourdon, defendants Cash and Offenhartz continually sexually harassed them during office hours, resulting in their constructive discharge in early 1990. Plaintiffs allege that the other defendants acquiesced in Cash and Offenhartz's harassing behavior.

 Defendants have moved, under Rules 12(b)(1) and 12(b)(6), F.R.Civ.P., (1) to dismiss the complaint to the extent that it states claims based on the Civil Rights Act of 1991, (2) alternatively, if these claims are not dismissed, to dismiss plaintiffs' federal claims for compensatory and punitive damages in excess of either $ 50,000 or $ 300,000, (3) to dismiss the New York Human Rights Law claims and (4) to dismiss the federal claims against defendants Walker and Kucik in their individual capacities, and the claim against Walker under New York law.


 The Civil Rights Act of 1991 ("the Act") was signed into law on November 21, 1991. Among other things, the Act allowed jury trials to be conducted and compensatory and punitive damages to be awarded in intentional discrimination cases brought under Title VII of the Civil Rights Act of 1964 ("Title VII"). See Pub. S. No. 102-166, § 102, 105 Stat. 1071 (1991). Previously, jury trials and compensatory and punitive damages had been held to be unavailable in cases brought under Title VII. See, e.g, Wade v. Orange County Sheriff's Office, 844 F.2d 951, 953 (2d Cir. 1988). The present case was filed after the date the Act was signed, but concerns conduct allegedly occurring before this date. Plaintiffs have demanded a jury trial and seek compensatory and punitive damages. Defendants seek to strike these portions of the complaint, contending that the Act may not be retroactively applied to conduct occurring before it was signed.

 There is a split in authority in this district regarding the retroactivity of the Civil Rights Act of 1991. Compare Wisdom v. Intrepid Sea-Air Museum, No. 91 Civ. 4439(RPP), 1992 U.S. Dist. LEXIS 9424 (S.D.N.Y. June 26, 1992) (Patterson, J.) (holding the Act retroactive); and Jackson v. Bankers Trust Co., 1992 U.S. Dist. LEXIS 6290, 1992 WL 111105 (S.D.N.Y. 1992) (Martin, J.) (same); and Youssef v. M. Rosenblatt & Son, Inc., 1992 U.S. Dist. LEXIS 6692, 1992 WL 116633 (1992) (Sand, J.) (tentatively applying the Act retroactively until further appellate guidance is forthcoming); with Stout v. International Business Mach. Corp., 798 F. Supp. 998 (S.D.N.Y. 1992) (Goettel, J.) (holding the Act prospective only); and Kelber v. Forest Elec. Corp., 799 F. Supp. 326, 1992 U.S. Dist. LEXIS 9977 (S.D.N.Y. 1992) (Freeh, J.) (same); and Sorlucco v. New York City Police Dep't, 780 F. Supp. 202 (S.D.N.Y.) (Mukasey, J.) (denying post-jury verdict motion to retroactively apply the Act), rev'd on other grounds, 971 F.2d 864 (2d Cir. 1992). *fn1" As yet, the Second Circuit has declined to rule on the Act's retroactivity. See Song v. Ives Lab., Inc., 957 F.2d 1041, 1048 (2d Cir. 1992).


 The Supreme Court has stated that "the starting point for interpretation of a statute 'is the language of the statute itself.'" See Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 110 S. Ct. 1570, 1575, 108 L. Ed. 2d 842 (1990) (quoting Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 64 L. Ed. 2d 766, 100 S. Ct. 2051 (1980)). Where the statute's language clearly expresses retroactive or nonretroactive congressional intent, that intent will control. See id. at 1577. Defendants contend that the language of the Act indicates that it should not be applied retroactively. Defendants focus on section 402(a) of the Act, which provides that "except as otherwise specifically provided, this Act and the amendments made by this Act shall take effect on enactment," contending that this language indicates that Congress only intended the Act to apply to conduct occurring after it was enacted.

 However, at least two other interpretations of this language are as likely to be correct as that urged by defendants. Congress might have meant that, as soon as the Act was signed, it was to be retroactively applied in all pending cases. Alternatively, Congress might have simply been setting an effective date for the legislation. Therefore, the language that defendants rely on cannot be said to clearly indicate any particular congressional intent on the issue of retroactivity. See, e.g., Stout, supra, 1992 WI 166846, at *5 (holding that this language is not dispositive on the issue of retroactivity).

 Plaintiffs focus on other parts of the Act in arguing that Congress clearly expressed its intent that the Act should be retroactive. Plaintiffs point to two sections of the Act, sections 109(c) and 402(b), that are explicitly made prospective only, giving rise to the inference that the rest of the Act was intended to be applied retroactively. *fn2" Plaintiffs contend that these two sections of the Act would be meaningless if the rest of the Act was not intended to apply retroactively, relying on Graham v. Bodine Elec. Co., 782 F. Supp. 74 (N.D. Ill. 1992). *fn3" While the prospective-only status of sections 109(c) and 402(b) does provide some support for the inference that Congress intended the rest of the Act to apply retroactively, there are other plausible reasons for the addition of these provisions. There is some evidence that Congress added them to ensure that, however the courts interpreted the rest of the Act, these provisions would definitely be interpreted as being prospective only. See Mozee v. American Commercial Marine Serv. Co., 963 F.2d 929, 933 & n.2 (7th Cir. 1992) (explaining legislative history). Therefore, sections 109(c) and 402(b) do not "clearly express" congressional intent that the Act be applied retroactively. See Stout, supra, 1992 WL 166846, at *4; Jackson, supra, 1992 WL 111105, at *3

 Both plaintiffs and defendants further contend that even if the language and structure of the Act do not provide clear support for their positions, the legislative history does provide such support. Plaintiffs rely on a report issued in conjunction with the House version of the Act, H.R. Rep. No. 102-40(I), reprinted in 1991 U.S.C.C.A.N. 549, 652, which states that the Act was intended to apply retroactively. While the House version of the Act did specifically state that the Act was to apply retroactively, see H.R. 1, § 113, this provision was deleted from the enacted legislation. The Act's legislative history contains numerous statements by proponents and opponents of retroactivity expressing their respective beliefs concerning the Act's retroactive or nonretroactive nature. Compare, e.g., 137 Cong. Rec. S15,483 (daily ed. Oct. 30, 1991) (interpretive memorandum of Senator Danforth opposing retroactivity); with 137 Cong. Rec. S15,963 (daily ed. Nov. 5, 1991) (remarks of Senator Kennedy endorsing retroactive application of the Act); and 137 Cong. Rec. H9531 (daily ed. Nov. 7, 1991) (remarks of Representative Edwards endorsing retroactivity); see generally Smith v. Petra Cablevision Corp., 793 F. Supp. 417 (E.D.N.Y. 1992) (extensively chronicling the Act's legislative history). In light of such direct conflicts of opinion it is clear that the congressional debates, reports and memoranda accompanying the Act cannot be relied upon to decide the retroactivity issue.

 Defendants urge the court to rely on the veto of the Civil Rights Act of 1990, which contained a provision favoring retroactivity, and the passage of the 1991 Act without such a provision, contending that this demonstrates congressional intent in favor of nonretroactivity. While at least one court has been persuaded by this argument, see Fray v. Omaha World Herald Co., 960 F.2d 1370, 1378 (8th Cir. 1992), it would be illogical, in light of the clear conflicts in congressional opinion denoted above, to hold that the absence of a retroactivity provision in the 1991 Act exhibits any general intent of congress disfavoring retroactivity. See Mozee, supra, 963 F.2d at 933 (rejecting argument that the difference in the 1990 and 1991 legislation exhibits congressional intent disfavoring retroactivity); Kelber, supra, 1992 U.S. Dist. LEXIS 9977, at *29-30 (same); Smith, supra, 1992 WL 108356, at *5 (same).

 Since neither the language nor the legislative history of the Civil Rights Act of 1991 exhibit any clear congressional intent on the issue of retroactivity, the court must reject both parties' arguments that legislative intent supports their respective positions.


 Where an agency is not empowered to promulgate its own regulations, courts may accord less weight to the agency's interpretation of a statute. Indeed, the Supreme Court has invoked this idea in its refusal to defer to the EEOC's construction of Title VII. . . . The deference to which the EEOC's position is ...

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