UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 91-5820
ROSE L. VALDEZ,
Plaintiff-Appellant,
VERSUS
THE SAN ANTONIO CHAMBER OF COMMERCE
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Texas
(September 25, 1992)
Before GOLDBERG, JONES, and DeMOSS, Circuit Judges.
DeMoss, Circuit Judge:
I. Facts and Procedural History
Rose Valdez (Valdez), a Hispanic female, was employed by the
San Antonio Chamber of Commerce (the Chamber) from June 1981 until
February 1987. After being at the Chamber for less than a year,
the Chamber promoted Valdez from the position of a staff manager in
the Urban Affairs Department to Vice President of the Public
Affairs Department.
In May 1984, Valdez submitted a proposal to the Chamber, which
if accepted, would have resulted in additional job responsibilities
and a pay raise. Around this time, the president of the Chamber
realigned the Chamber's personnel, which resulted in Valdez's job
responsibilities being restricted. Valdez's salary, however, was
not reduced. The Chamber fired Valdez in February 1987, allegedly
for poor job performance.
In December 1988, Valdez sued the Chamber, the president of
the Chamber, and the board of directors of the Chamber, alleging
violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq. (Title VII), 42 U.S.C. § 1981 (Section 1981), and
the Equal Pay Act, 29 U.S.C. § 206(d) (EPA). In her suit, Valdez
alleged that the Chamber denied her a promotion and eventually
discharged her because of her race, sex, and national origin.
Before trial, the United Stated District Court for the Western
District of Texas (USDC) dismissed the board of directors from the
suit, granted summary judgment denying Valdez's claim under the
EPA, and dismissed Valdez's claim under Section 1981. Following a
trial on the Title VII claim, the USDC entered judgment for the
defendants holding that Valdez was not fired for discriminatory
reasons. Additionally, the USDC ruled that Valdez's prosecution of
her Section 1981 claim was groundless, and ordered her to pay the
defendants $6,000 in attorneys' fees. Valdez appeals, contending
that the USDC erred: (1) by not retroactively applying the Civil
Rights Act of 1991, (2) by dismissing her Section 1981 claim, and
(3) by not allowing a jury trial on her Title VII claim.
II. Discussion
A. Civil Rights Act of 1991 - Retroactive or Prospective?
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Valdez contends that this court should retroactively apply
Section 101(2)(b) and Section 102(c)(1) of the Civil Rights Act of
1991, Pub.L. No. 102-166 (the Act). Section 101(2)(b) of the Act
says that "[f]or 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."
In effect, Section 101(2)(b) statutorily reverses the Supreme
Court's decision in Patterson v. McLean Credit Union, 491 U.S. 164
(1989). In Patterson, the Court held that a Section 1981 claim
will lie only if the discriminatory conduct complained of resulted
in a "new and distinct" contractual relationship between the
employer and the employee.
Section 102(c)(1) of the Act allows either party to request a
jury trial. Specifically, Section 102(c) says that "[i]f a
complaining party seeks compensatory or punitive damages under this
section--
(1) any party may demand a trial by jury. . . ."1
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Valdez contends, in the alternative, that even if the Civil
Rights Act of 1991 is not retroactively applied, she was still
entitled to a jury trial on her Title VII claim. That contention
conflicts with the clearly established rule that plaintiffs are not
entitled to a jury trial when they are seeking only equitable
relief under Title VII and, as such, we reject it. See Great Am.
Fed. Sav. & Loan Ass'n. v. Novotny, 442 U.S. 366, 374-75
(1979)("Because the Act expressly authorizes only equitable
remedies, the courts have consistently held that neither party has
a right to a jury trial."); Harrison v. Associates Corp. of North
America, 917 F.2d 195, 198 (5th Cir. 1990)(Title VII claims are not
entitled to a trial by jury.); Davis v. West Community Hospital,
786 F.2d 677, 683 (5th Cir. 1986); Johnson v. Georgia Highway
Express Inc., 417 F.2d 1122, 1125 (5th Cir. 1969).
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This court has recently issued opinions squarely addressing
whether sections 101(2)(b) and 102(c)(1) of the Act should be
retroactively applied. In both opinions, this court refused to
apply retroactively those sections of the Act.
In Johnson v. Uncle Ben's, Inc., 965 F.2d 1363 (5th Cir.
1992), this court held that Section 101(2)(b) of the Act does not
retroactively apply to cases arising out of conduct occurring
before the Act was enacted. In reaching its decision, the court
decided that the language of the Act was silent as to whether the
Act should be retroactively applied, and that the legislative
history of the Act was ambiguous. After so finding, the court
followed the judicial cannon that "statues affecting substantive
rights `are ordinarily addressed to the future and are to be given
prospective effect only.'" Id. (quoting Turner v. United States,
410 F.2d 837, 842 (5th Cir. 1969). Section 101(2)(b) affects
substantive rights, the court reasoned, and, therefore, the court
refused to apply retroactively Section 101(2)(b).
Valdez also contends that Section 102(c)(1) of the Act should
be retroactively applied. In Landgraf v. USI Film Products, 968
F.2d 427 (5th Cir. 1992), this court held that Section 102(c)(1) of
the Act should not be retroactively applied to allow a jury trial,
in a Title VII claim, when the USDC had conducted a bench trial on
such claim before the effective date of the Act. The court held
that "to require . . . [the defendant] to retry this case because
of a statutory change enacted after the trial was completed would
be an injustice and a waste of judicial resources. We apply
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procedural rules to pending cases, but we do not invalidate
procedures followed before the new rule was adopted."2
In the present case, Valdez asks us to apply retroactively
Sections 101(2)(b) and 102(c)(1). We decline to do so. This
court's decisions in Johnson and Landgraf directly control our
decision in the present case. In the present case, the USDC had
conducted a trial and entered judgment before the effective date of
the Act. Therefore, we refuse to apply retroactively the Act.
B. Section 1981 Claim
Valdez contends that even if this court does not retroactively
apply the Act, the USDC still erred in dismissing her Section 1981
claim. To support her contention, Valdez points to a proposal that
she submitted to the Chamber. In that proposal, Valdez suggested
that the Chamber eliminate the position of vice president of the
Economic Development Department and that she assume those
additional responsibilities. She also suggested that she receive
a pay raise. Valdez contends that the rejection of her proposal
was a denial of a promotion. Under Patterson, Valdez contends that
denial of a promotion resulted in a denial of an opportunity for
her to enter into a "new and distinct" contractual relationship
with the Chamber. We reject that contention.
2
In Landgraf, this court also refused to apply retroactively
the provision of Section 102 allowing the recovery of compensatory
and punitive damages. In reaching that decision, the court
reasoned that retroactively applying that provision of the Act to
conduct occurring before the effective date of the Act would result
in manifest injustice.
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This court's opinion in Harrison v. Associates Corp. of North
America, 917 F.2d 195 (5th Cir. 1990), is instructive in addressing
Valdez's contention. In Harrison, an employer denied an employee
a promotion from C.R.T. operator to lead C.R.T. Operator. The
principal difference in duties between the job of C.R.T. Operator
and lead C.R.T. Operator was that the lead C.R.T. Operator assigned
priority to the work for the department, helped other operators
when they had questions, and occasionally trained a new C.R.T.
Operator. Additionally, the employer gave the employee who was
promoted to lead C.R.T. Operator a $100 a month salary increase.
This court held that the employer's refusal to promote the employee
to lead C.R.T. Operator did not deny the employee an opportunity to
enter into a "new and distinct" contractual relationship with the
employer. In reaching its holding, this court stated "[a]lthough
a raise in salary which accompanies a change in position is
evidence of a new and distinct relation, a raise which is
accompanied by no significant change in duties and responsibilities
does not reach the level of a change in employment relationship
protected by § 1981." Harrison at 198.
In the present case, if the Chamber had accepted Valdez
proposal, her duties and responsibilities would not have
significantly changed. She would have retained her same job title,
and she would have remained in the same type of supervisory
position. The only change would have been that Valdez would have
assumed the duties of the eliminated position in addition to her
normal duties. Those additional duties were, in Valdez's own
words, overlapping and duplicitous of her normal duties as vice
president of the Public Affairs Department. Clearly, Valdez's
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unilateral proposed expansion of her position did not rise to the
level of a "new and distinct" relation, and therefore the USDC was
correct to dismiss Valdez's Section 1981 claim.
C. Title VII Claim
Valdez contends that the USDC erred in denying her claim under
Title VII. In a typical disparate treatment discharge claim under
Title VII, the plaintiff must prove a prima facie case of
discrimination by showing that: (1) the plaintiff is a member of a
protected group; (2) the plaintiff was qualified for the job that
was held; (3) the plaintiff was discharged; and (4) after the
employer discharged the plaintiff, the employer filled the position
with a person who is not a member of a protected group. Vaughn v.
Edel, 918 F.2d 517, 521 (5th Cir. 1990). If the plaintiff
establishes a prima facie case, the employer must articulate a
legitimate nondiscriminatory reason for the termination. Id. If
the employer does so, the plaintiff must prove by a preponderance
of the evidence that the reason proffered by the employer for
termination is pretextual. Id. To show pretext, a plaintiff may
prove that the reason proffered by the employer for termination is
unworthy of credence, or that the employer's decision was more
likely motivated by discriminatory reasons. Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 257 (1981).
Ultimately, the plaintiff must prove that she was discriminated
against because of her race or sex. See Bienkowski v. American
Airlines, 851 F.2d 1503, 1505 (5th Cir. 1988).
In the present case, Valdez established a prima facie case of
discrimination. In response, the Chamber proffered a legitimate
nondiscriminatory reason for its firing of Valdez--poor job
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performance. At trial, Valdez argued that the reason proffered by
the Chamber for firing her was pretextual. The real reason the
Chamber fired her, Valdez argued, was not because she did her job
poorly, but because she was Hispanic and female. To support her
argument, Valdez testified that she was required to perform menial
duties at the Chamber such as preparing coffee, that she was not
given enough staff to perform her duties, and that other Chamber
employees excluded her from social activities. She also testified
that the Chamber president told her that she needed to work twice
as hard as the other vice presidents because she was young,
hispanic, and female.
On the other hand, the Chamber presented evidence that between
1982 and 1986, the president of the Chamber evaluated Valdez five
times. In each of those five appraisals, the president rated the
overall performance of Valdez as "needs improvement." Other
witnesses, familiar with Valdez's work, testified that her work was
not up to standards and often was not on time. Based on that
evidence, it was not clearly erroneous for the USDC to hold that
the Chamber terminated Valdez for poor job performance, not for
unlawful discriminatory reasons. In sum, the USDC rejected
Valdez's evidence, because it believed the Chamber's evidence.
There was more than ample evidence for it to do so.
For the forgoing reasons, the judgment of the USDC is
AFFIRMED.
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