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February 3, 1994



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

CARTER, District Judge

 The background of this sexual harassment case is set forth in an opinion issued on September 1, 1992, Bridges v. Eastman Kodak Co., 800 F. Supp. 1172 (S.D.N.Y. 1992) (Carter, J.), with which familiarity is assumed. This action is presently before the court for consideration of various issues, as follows: (1) the impact of the non-retroactivity of the Civil Rights Act of 1991, 42 U.S.C. § 1981a, ("1991 Act") to the issues in this case; (2) defendants' request under Rule 35(a), F.R.Civ.P., for an order compelling mental examinations of plaintiffs; and (3) plaintiffs' request for a protective order, presumably under Rule 26(c), F.R.Civ.P., limiting the scope of inquiry of plaintiffs and their therapists.


 In its opinion of September 1, 1992, the court denied defendants' motion to dismiss plaintiffs' pendent state claims under New York Human Rights Law, N.Y. Exec. Law § 296(1)(a) (McKinney 1982) ("HRL"). That decision was based in part on the court's finding that plaintiffs were entitled to a jury trial and compensatory damages on their claims under 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) due to the retroactivity of the 1991 Act. Bridges, 800 F. Supp. at 1179. However, following that decision, the Second Circuit concluded that the 1991 Act was not retroactive, see Butts v. City of New York Dep't of Housing Preservation and Development, 990 F.2d 1397 (2d Cir. 1993), thereby putting the basis of the court's earlier decision in doubt. In an order dated September 1, 1993, the court directed the parties to rebrief the retroactivity issue as it applies in this case in light of Butts. Subsequently, defendants requested an order: dismissing plaintiffs' claims for compensatory and punitive damages under Title VII; striking plaintiffs' demand for a jury trial; dismissing all other actions under the 1991 Act; and dismissing plaintiffs' pendent state claims. Plaintiffs, however, contend that Butts is not controlling in this case, arguing that the Butts court's ruling should be narrowly construed since that decision focused primarily on the retroactivity of "substantive rights."

 While Butts focused on the retroactivity of the 1991 Act as to the substantive rights of that plaintiff, *fn1" the Butts court nevertheless declined to follow the presumption of retroactivity. Butts, 990 F.2d at 1411. Moreover, in a later case the Second Circuit explicitly reversed a district court's ruling allowing the retroactive application of the 1991 Act's provisions concerning the plaintiff's claims for compensatory and punitive damages and demand for a jury trial. Wisdom v. Intrepid Sea-Air Space Museum, 993 F.2d 5, 7 (2d Cir. 1993). The court is obliged to adhere to the Butts decision "as the law of this Circuit," Wisdom, 993 F.2d at 7, and so the 1991 Act must be applied prospectively only. Under the law existing at the time of the allegations made in the instant case, plaintiffs had no right to either a jury trial, see, e.g., Wade v. Orange County Sheriff's Office, 844 F.2d 951, 953 (2d Cir. 1988), or compensatory or punitive damages under Title VII, see, e.g., Carrero v. New York City Housing Authority, 890 F.2d 569, 581 (2d Cir. 1989). Therefore, the court must dismiss plaintiffs' claims for compensatory and punitive damages and strike their demand for a jury trial as to their Title VII claims.

 While it is clear that the non-retroactivity of the 1991 Act denies plaintiffs the right to a jury trial and compensatory and punitive damages on their federal claims, it may still be appropriate for the court to hear plaintiffs' state law claims and allow a jury trial on these claims. Defendants, however, argue that pendent jurisdiction is inappropriate, contending that jury confusion and the predominance of state issues would be likely given the differences in the legal standards and relief available under Title VII and New York state law. *fn2" They also argue that pendent jurisdiction would subvert Congress' intent not to allow jury trials for Title VII claims.

 A federal court may hear state law claims under the doctrine of pendent jurisdiction if the state claims "are so related to [the federal] claims in the action . . . that they form part of the same case or controversy . . ." 28 U.S.C. § 1367(a) (1992); see also United Mine Workers v. Gibbs, 383 U.S. 715, 725, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966). The decision to exercise jurisdiction is discretionary, and a federal court may dismiss the state claims if they substantially predominate over the federal claims or if there is a likelihood of jury confusion. See 28 U.S.C. § 1367(c); Gibbs, 383 U.S. at 727.

 There is no doubt that the Title VII and the HRL claims arise from the "same case or controversy" since the state claims are based on the same allegations of discriminatory conduct as the federal claims. Thus, the court clearly has the power to entertain plaintiffs' state HRL claims.

 As to the issue of predominance of state issues and jury confusion, some district courts in this circuit have declined to exercise pendent jurisdiction over state HRL claims, while others have found such jurisdiction appropriate. Compare, e.g., Burger v. Health Ins. Plan, 684 F. Supp. 46, 50-51 (S.D.N.Y. 1988) (Conboy, J.) (potential for jury confusion one reason for dismissing claim); Barbetta v. Chemlawn Services Corp., 669 F. Supp. 569, 571 (W.D.N.Y. 1987) (HRL claim dismissed because jury confusion likely); and Alveari v. American International Group, Inc. 590 F. Supp. 228, 232 (S.D.N.Y. 1984) (Weinfeld, J.) (retention of state claim would complicate what would otherwise be a simple non-jury case) with Drummer v. DCI Contracting Corp., 772 F. Supp. 821, 831-833 (S.D.N.Y. 1991) (Sweet, J.) (pendent jurisdiction exercised over state law sex discrimination claim despite differing legal standards and relief available under the applicable state and federal laws); Song v. Ives Laboratories, Inc., Div. of American Home Products Corp., 735 F. Supp. 550, 555 (S.D.N.Y 1990) (Wood, J.) (pendent jurisdiction exercised over state HRL claims); Giuntoli v. Garvin Guybutler Corp., 726 F. Supp. 494, 503 (S.D.N.Y. 1989) (Ward, J.) (pendent jurisdiction exercised over HRL claim where court had jurisdiction over Title VII sex discrimination claim).

 Moreover, "considerations of judicial economy, convenience and fairness to the litigants," Gibbs, 383 U.S. at 726, militate in favor of retaining jurisdiction. Since federal courts have exclusive jurisdiction over Title VII claims, dismissing the HRL claims would leave plaintiffs with no choice but to proceed in two forums. This outcome would be unnecessarily duplicative and wasteful of judicial resources See Song, 735 F. Supp. at 554. Therefore, defendants' request to dismiss plaintiffs' pendent HRL claims is denied.

 To the extent that defendants' arguments for striking plaintiffs' jury demand are premised on the dismissal of their state claims, that argument is moot since the court has decided to exercise pendent jurisdiction. Thus, although plaintiffs' do not have a right to a jury trial on their federal claims, they are entitled to a jury trial on their HRL claims. See O'Brien v. King World Productions, Inc., 669 F. Supp. 639, 642 (S.D.N.Y 1987) (Goettel, J.) (plaintiff has right to jury trial on HRL claim even though no such right exists under Title VII); Selbst v. Touche Ross & Co., 587 F. Supp. 1015, 1017 (S.D.N.Y. 1984) (Knapp, ...

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