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DAVILA v. NEW YORK HOSP.

January 4, 1993

LUIS DAVILA, Plaintiff,
v.
THE NEW YORK HOSPITAL, Defendant.



The opinion of the court was delivered by: SHIRLEY WOHL KRAM

MEMORANDUM OPINION AND ORDER

 SHIRLEY WOHL KRAM, U.S.D.J.

 At issue in this case involving alleged employment discrimination on the basis of national origin, is whether certain provisions of the Civil Rights Act of 1991 (the "Act" or the "1991 Act"), Pub. L. No. 102-166, 105 Stat. 1071 (1991), should be applied retroactively to cases pending at the time of the Act's enactment that involve conduct occurring before its passage. Also at issue, is whether plaintiff is entitled to punitive damages and a jury trial on his state law claims.

 INTRODUCTION

 Plaintiff Luis Davila ("Davila"), an immigrant to this country from Bolivia, was employed by defendant New York Hospital (the "Hospital") from June 1983 through April 1989. From June 1986 until his termination, Davila held the position of cardiovascular technician. Davila alleges that he was forced to resign from this position on March 15, 1989, because of his national origin.

 On October 6, 1989, Davila filed a charge of discrimination based upon national origin with the Equal Employment Opportunity Commission ("EEOC"). In his complaint, Davila alleged that he was subjected to differential treatment in the terms and conditions of his work requirements and to harassment based upon his national origin. Davila further alleged that this discrimination resulted in his constructive discharge. On June 12, 1991, the EEOC dismissed Davila's complaint and advised him of his right to sue within 90 days of his receipt of the dismissal.

 Davila commenced this action on September 5, 1991, by serving and filing a pro se complaint. His complaint alleged that he had been terminated by the Hospital on the basis of his national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq. ("Title VII").

 Thereafter, Davila retained an attorney who served an amended complaint on the Hospital on March 6, 1992. Davila's amended complaint realleges his Title VII claim, and asserts new causes of action under 42 U.S.C. § 1981 ("Section 1981") and the New York State Human Rights Law, N.Y. Exec. Law § 296 et seq. (the "New York HRL"). Specifically, Davila alleges that he was harassed by the imposition of discriminatory work standards and conditions; subjected to work assignments and conditions less favorable than similarly situated non-Hispanic employees; and constructively discharged, all in violation of Section 1981, Title VII and the New York HRL. In his prayer for relief, Davila seeks declaratory and injunctive relief, reinstatement, back pay, and compensatory and punitive damages. Davila has demanded a jury trial for each of his claims.

 In amending his complaint, Davila seeks to apply retroactively certain provisions of the 1991 Act, which became effective on November 21, 1991, more than two months after Davila filed his suit. Specifically, Davila seeks to apply those portions of the 1991 Act that would allow him to maintain his Section 1981 claim, seek compensatory and punitive damages under Title VII and demand a jury trial for his Title VII claim.

 Prior to the enactment of the 1991 Act, Davila's Section 1981 claim was barred by Patterson v. McLean Credit Union, 491 U.S. 164, 176, 105 L. Ed. 2d 132, 109 S. Ct. 2363 (1989), wherein the Supreme Court held that "section 1981 cannot be construed as a general proscription of racial discrimination in all aspects of contract relations, for it expressly prohibits discrimination only in the making and enforcement of contracts." In addition, prior to the Act's passage, the Second Circuit had ruled that trial by jury and compensatory and punitive damages were unavailable to Title VII claimants. See, e.g., Wade v. Orange County Sheriff's Office, 844 F.2d 951, 953 (2d Cir. 1988).

 The 1991 Act, however, made three significant changes which bear on Davila's claims. First, Section 101 explicitly overrules the Patterson decision, stating:

 For purposes of this section, the term 'make and enforce contracts' includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.

 42 U.S.C. § 1981(b). Second, Section 102 permits a party complaining of unlawful intentional discrimination under Title VII to recover compensatory and punitive damages if the complaining party cannot recover under Section 1981. Finally, Section 102(c) states that a complaining party who seeks compensatory or punitive damages may demand a jury trial.

 The Hospital contends, however, that the 1991 Act may not be applied retroactively, and thus moves, pursuant to Rules 12(b)(6) and 12(f) of the Federal Rules of Civil Procedure, to dismiss and strike portions of Davila's amended complaint. Specifically, the Hospital seeks to strike Davila's demand for a jury trial and compensatory and punitive damages under Title VII, and to dismiss Davila's Section 1981 claim for failure to state a claim upon which relief may be granted. Unrelated to the retroactivity issue, the Hospital seeks to strike Davila's demand for a jury trial and punitive damages under the New York HRL on the grounds that punitive damages are not available under the statute, *fn1" and that Davila has waived his right to a jury trial by requesting both legal and equitable relief.

 DISCUSSION

 I. Retroactivity of the 1991 Act

 In enacting the 1991 Act, Congress sought 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, § 3. *fn2"

 It is undisputed that Davila's Section 1981 claim, his requests under Title VII for compensatory and punitive damages and his demand for a jury trial under Title VII depend entirely on the retroactivity of these provisions of the 1991 Act. If these provisions apply prospectively only, Davila's Section 1981 claim, his damages requests, and demand for a jury trial must be dismissed since the action was filed on September 5, 1991, before the 1991 Act was enacted. Thus, the Court must decide whether the 1991 Act's provisions should be applied retroactively to cases pending at the time of the Act's enactment that involve conduct occurring before its passage.

 Supreme Court authority on the retroactivity of legislation has proceeded along divergent lines, producing a split among courts on the question of the Act's retroactivity. *fn3" In Bradley v. School Board of Richmond, 416 U.S. 696, 40 L. Ed. 2d 476, 94 S. Ct. 2006 (1974), the Court held that "a court is to apply the law in effect at the time it renders its decision." Bradley, 416 U.S. at 712. The two exceptions to this rule are where retrospective application of a law would result in manifest injustice to one of the parties or where there is clear congressional intent to the contrary. Id. at 713. More recently, however, the Supreme Court has spoken on retroactivity in a contrary manner. In Bowen v. Georgetown University Hospital, 488 U.S. 204, 102 L. Ed. 2d 493, 109 S. Ct. 468 (1988), the Court stated that "retroactivity is not favored in the law . . . congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result." Id. at 208.


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