United States Court of Appeals,
Eleventh Circuit.
No. 94-6504.
Henry M. GOODGAME; James Brown, Plaintiffs-Appellants,
v.
AMERICAN CAST IRON PIPE COMPANY, Defendant-Appellee.
Feb. 28, 1996.
Appeal from the United States District Court for the Northern
District of Alabama. (No. CV-91-N-185-S), Edwin L. Nelson, Judge.
Before EDMONDSON and COX, Circuit Judges, and FAY, Senior Circuit
Judge.
COX, Circuit Judge:
The question of whether to apply the provisions of the Civil
Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071 (1991),
retroactively is now a settled one. See Landgraf v. USI Film
Products, --- U.S. ----, ---- - ----, 114 S.Ct. 1483, 1505-08, 128
L.Ed.2d 229 (1994) (amendments to Title VII concerning punitive and
compensatory damages only apply prospectively); Rivers v. Roadway
Express, Inc., --- U.S. ----, ---- - ----, 114 S.Ct. 1510, 1519-20,
128 L.Ed.2d 274 (1994) (amendments to § 1981 not retroactive).
Before Landgraf, Rivers, and our decision in Curtis v. Metro
Ambulance Service, Inc., 982 F.2d 472, 473-74 (11th Cir.1993), many
trial courts reached the opposite conclusion and applied the Act to
claims pending before its November 1991 effective date. Once it
became apparent that such a course of action was incorrect, those
courts were faced with the challenge of repairing the damage done
by trial of the case under the wrong law. This appeal arises out
of such a case.
In this case, the jury awarded Henry Goodgame nominal and
punitive damages and James Brown back pay and punitive damages,
based on instructions reflecting provisions of the Civil Rights Act
of 1991, passed while the case was pending. After we ruled in
Curtis that the 1991 Act did not apply retroactively, the trial
court set aside the jury's verdict, vacated the award of punitive
damages, and, treating the jury as advisory, entered judgment for
American Cast Iron Pipe Company (ACIPCO) on all counts except for
Goodgame's Title VII claim. The court awarded Goodgame $1 in
nominal damages. On appeal, Goodgame and Brown challenge these
actions by the court. For the following reasons, we affirm in
part, reverse in part, and remand for a new trial on two of the
plaintiffs' § 1981 claims.
I. BACKGROUND
Henry Goodgame and James Brown, who are African-American,
brought suit against ACIPCO, claiming that they were denied
promotions because of their race. Goodgame and Brown worked in
ACIPCO's pipe manufacturing plant in Birmingham, Alabama. ACIPCO
hired Goodgame as a laborer in 1954, and over the years he learned
how to perform all the different jobs in the plant's Monocast
Department. By 1971, Goodgame was supervising other employees in
operating an annealing oven, used to heat pipe segments in order to
relieve stress within the pipe material. In 1975, ACIPCO promoted
Goodgame to a permanent supervisory position, Shift Foreman in the
Number 2 Cleaning Shed. After his promotion, Goodgame held various
supervisory positions within the Monocast Department.
In January 1990, ACIPCO promoted David Burnett, instead of
Goodgame, to the position of Shop Foreman over the Number 2 and 3
Cleaning Sheds. ACIPCO hired Burnett, who is white, in 1963; over
the years, Burnett worked in various capacities in the Monocast
Department. At the time Burnett was promoted, Goodgame had been
reassigned to the Number 1 Cleaning Shed. After the promotion was
announced, Goodgame met with Superintendent Paul Crocker to protest
Burnett's selection. Crocker told Goodgame that Burnett was chosen
only because he "happened to be up there" in the Number 2 Shed
working as a supervisory employee. (R. 5-55 at 75.) According to
Crocker, who made selection decisions for supervisory jobs in the
Monocast Department, the two employees' comparative experience was
not a determinative factor, since both Goodgame and Burnett had
worked for ACIPCO for so long. (R. 6-55 at 383-84.)
ACIPCO hired James Brown in 1969 to work in the Monocast
Department as a Spigotman. Over the next fifteen years, Brown held
various nonsupervisory positions. In 1984 he was promoted to
Casting Machine Operator, a position he held until 1988, when he
became Shop Preparation Leadman. While a Casting Machine Operator,
Brown trained two white employees, Roy Caffee and Mike Short, to
operate his machine, and after he became a Shop Preparation
Leadman, he trained David Allgood, who is also white, in shop
preparation. ACIPCO eventually promoted all three trainees,
allegedly at Brown's expense: in December 1989 Caffee was selected
for the position of Casting Shift Foreman in the Number 2 Shop;
about the same time, Short was promoted to the position of Casting
Leadman in the Number 3 Shop; and in September 1990 Allgood was
selected for the position of Casting Leadman in the Number 1 Shop.1
Brown contends that in July 1991, he was denied a fourth promotion
because of his race when ACIPCO named Lawrence Vickers, a white
man, Shift Foreman in the Number 3 Shop, despite the fact that
Brown had more experience than Vickers in the Number 3 Shop.
Shortly after ACIPCO promoted Burnett to Shop Foreman,
Goodgame filed a complaint with the Equal Employment Opportunity
Commission (EEOC), alleging that ACIPCO refused to promote Goodgame
because of his race. Brown filed a similar EEOC complaint in
September 1990, soon after he was denied the promotion to Casting
Leadman that Allgood received. Brown asserted that ACIPCO's
refusal to promote him was "continuing" and further alleged that
ACIPCO used selection criteria for promotions that had a disparate
impact on African-American employees. The EEOC issued Goodgame and
Brown right-to-sue letters, and in January 1991 they filed this
lawsuit.
II. PROCEDURAL HISTORY
Goodgame and Brown filed a consolidated amended complaint in
February 1991. The complaint alleges that they were denied
promotions based on their race, in violation of 42 U.S.C. § 1981
(1988), and of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e to 2000e-17 (1988). The complaint also includes a claim
that Brown was "continually" denied supervisory and managerial
positions by ACIPCO. (R. 1-3 at 3.) Goodgame and Brown requested
a jury trial with respect to their § 1981 claims, but at the time
1
Brown was eventually promoted to the position of Casting
Leadman in September 1990, after he filed his complaint with the
Equal Employment Opportunity Commission.
had no right to a jury under Title VII.
During the course of the litigation, Congress passed the Civil
Rights Act of 1991. See 42 U.S.C. §§ 1981 & 1981a (Supp.1991);
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§
2000e to 2000e-17 (Supp.1991). The 1991 Act changed the law
applicable to Goodgame's and Brown's claims in several important
respects. The Act broadened the scope of § 1981, by making it
applicable to all promotion claims. See 42 U.S.C. § 1981(b).
Prior to the 1991 Act, a promotion had to "rise[ ] to the level of
an opportunity for a new and distinct relation between the employee
and the employer" before a discriminatory promotion decision was
actionable under § 1981. Patterson v. McLean Credit Union, 491
U.S. 164, 185, 109 S.Ct. 2363, 2377, 105 L.Ed.2d 132 (1989). The
Act also liberalized Title VII, by creating a right to trial by
jury and allowing the award of compensatory and punitive damages.
See 42 U.S.C. § 1981a(a)(1) & (c) (Supp.1991). Before the Act,
only equitable relief was available.
After the effective date of the Act, Goodgame and Brown moved
to amend their complaint to state claims based on the new
provisions of § 1981 and Title VII. The trial court held, over
ACIPCO's objections, that the new provisions retroactively applied
to these claims, and allowed Goodgame and Brown to amend their
complaint. At trial, the court submitted Goodgame's and Brown's
claims to the jury on special interrogatories that made no
distinction between the Title VII and § 1981 claims. The
instructions were based on the 1991 Act, so they did not require
the jury to determine whether any of the promotions involved a new
and distinct relationship between ACIPCO and Goodgame or Brown.
The instructions also allowed the jury to award compensatory and
punitive damages under either Title VII or § 1981.
The jury returned a verdict for Goodgame on his promotion
claim, awarding him $1 in nominal damages2 and $250,000 in punitive
damages. The verdict did not state whether the award was based on
§ 1981 or on Title VII. The jury returned a verdict for Brown
based only on the Short promotion to Casting Leadman. Brown
received back pay of $727.44 and $250,000 in punitive damages;
this award was presumably under § 1981, since the trial court had
already granted ACIPCO judgment as a matter of law on Brown's Title
VII claim arising from the Short promotion.3
After the trial, but before the trial court entered a final
judgment, this court held that the Civil Rights Act of 1991 did not
apply retroactively. See Curtis, 982 F.2d at 473-74. Faced with
a verdict based on the improper holding that the 1991 Act applied
to Goodgame's and Brown's claims, the trial court vacated the award
of punitive damages and set aside the jury verdict, stating that
the court would treat the jury as advisory pursuant to Fed.R.Civ.P.
39(c). (R. 2 at 45.) The court asked the parties to submit
proposed findings of fact consistent with the jury verdict, in
2
The evidence showed that the wages Goodgame received after
Burnett was promoted exceeded Burnett's salary.
3
After Goodgame and Brown presented their case, the court
granted ACIPCO's motion for judgment as a matter of law on two of
Brown's Title VII claims. The court ruled that the claims were
time-barred because Brown had filed his EEOC complaint too late
to include the December 1989 Caffee and Short promotions. See 42
U.S.C. § 2000e-5(e)(1) (1988) (providing 180-day limit for filing
charges with EEOC).
order to help it fashion a final judgment compatible with pre-1991
Title VII and § 1981 provisions.
In April 1994 the trial court entered judgment, finding for
ACIPCO on every count except for Goodgame's Title VII claim. The
court granted ACIPCO judgment as a matter of law on the § 1981
claims. The court ruled that Goodgame and Brown had effectively
waived their claims under "old" § 1981, since after they amended
their complaint, they failed to allege and prove that the
promotions at issue involved new and distinct relationships. The
court also reiterated its earlier conclusion that Brown's Title VII
claims with regard to two of the promotions were time-barred; the
court followed the jury findings in denying Brown relief on his
other Title VII claims. The court awarded Goodgame $1 in nominal
damages on his Title VII claim.
After the trial court entered judgment, Goodgame and Brown
moved to alter, amend, or vacate the judgment and alternatively
moved for a new trial, arguing that the evidence they presented at
trial at least raised a jury question as to whether the promotions
at issue involved new and distinct relationships. (R. 2-59 at 1-2,
4.)4 The trial court rejected their contentions and denied the
motions. This appeal followed.
III. ISSUES ON APPEAL
Goodgame and Brown argue that the trial court committed
several errors in setting aside the jury's verdict and in its final
4
Brown also challenged as erroneous the court's conclusion
that two of Brown's promotion claims were untimely, arguing that
those claims were part of a continuing violation of Title VII by
ACIPCO.
judgment. They assert that the court erred by treating the jury as
"advisory" under Fed.R.Civ.P. 39(c), since they had a right to a
5
jury trial on their § 1981 claims. They also challenge the
court's decision to grant ACIPCO judgment as a matter of law on
their § 1981 claims; they argue that the court should have granted
them a new trial so that a jury could determine whether the
disputed promotions involved new and distinct relationships as
required under "old" § 1981. Goodgame and Brown also contend that
the trial court abused its discretion by overturning the jury award
of punitive damages.
IV. DISCUSSION
A. The trial court's treatment of the jury verdicts
Goodgame and Brown contend that the trial court erred by
6
treating the jury as advisory under Fed.R.Civ.P. 39(c). Rule
39(c), they assert, does not apply to their § 1981 claims at all,
since they had a right to a jury trial with regard to those claims
irrespective of whether the 1991 Act applied. Goodgame and Brown
5
Goodgame and Brown do not challenge the trial court's
conclusion that they have no right to a jury under pre-1991 Act
Title VII. See Wilson v. City of Aliceville, 779 F.2d 631, 635-
36 (11th Cir.1986) (no right to trial by jury since Title VII
claims are entirely in equity; where an advisory jury is used
pursuant to Rule 39(c), court is free to adopt or disregard
jury's findings).
The only issue plaintiffs raise on appeal concerning
their Title VII claims is Brown's argument that, since his
Title VII claims amounted to a continuing violation by
ACIPCO, the trial court erred in finding that two of them
were untimely. We find Brown's argument meritless and do
not discuss it further. See 11th Cir.R. 36-1(a).
6
Fed.R.Civ.P. 39(c) provides that in "all actions not
triable of right by a jury," a court may try any issue with an
advisory jury's assistance or order that the action be tried by a
jury as if there was a right to a jury trial.
argue that the trial court should have allowed a properly
instructed jury to reexamine their § 1981 claims.7
We review the trial court's application of Rule 39(c) de
novo. Burns v. Lawther, 53 F.3d 1237, 1240 (11th Cir.1995). Our
scrutiny is "most exacting" where, as here, an appellant's right to
a jury trial is implicated. City of Morgantown v. Royal Ins. Co.,
337 U.S. 254, 258, 69 S.Ct. 1067, 1069-70, 93 L.Ed. 1347 (1949);
Burns, 53 F.3d at 1240; see also Beacon Theatres, Inc. v.
Westover, 359 U.S. 500, 508, 79 S.Ct. 948, 955, 3 L.Ed.2d 988
(1959) (stating that where related legal and equitable claims are
brought in same proceeding, jury must be allowed to decide legal
claims first; then court can fashion equitable relief consistent
with jury's findings).
We agree with Goodgame and Brown that Rule 39(c) plainly does
not apply to claims, like their § 1981 claims, that are triable by
jury as a matter of right. See Lincoln v. Board of Regents, 697
F.2d 928, 934 (11th Cir.), cert. denied, 464 U.S. 826, 104 S.Ct.
97, 78 L.Ed.2d 102 (1983). It is axiomatic in such cases that a
trial court cannot disregard a jury's verdict and substitute its
own findings in deciding claims; otherwise, the court could
effectively subsume the jury's function and deprive litigants of
their right to trial by jury. Cf. Beacon Theatres, 359 U.S. at
506-10, 79 S.Ct. at 954-56 (discussing the principle that use of
7
In their brief, Goodgame and Brown also argue that the
court should have left the verdicts intact, in light of their
right to a jury trial, despite the fact that the wrong law was
applied. This argument is meritless; the trial court had to do
something to correct the errors committed because of the
retroactive application of the 1991 Act.
discretion by a court to let equitable claims precede legal ones,
possibly infringing the right to jury trial, requires at least the
danger of irreparable harm or inadequacy of legal remedies). When
an advisory jury is empaneled under Rule 39(c), "[i]ts findings of
fact are not binding on the trial court." Wilson v. City of
Aliceville, 779 F.2d 631, 635-36 (11th Cir.1986). Just the
opposite must be true when a jury is demanded as a matter of right
by a party.
The trial court, in an attempt to salvage the jury's verdicts,
set them aside, stated that it would treat the jury as "advisory,"
and asked the parties to submit proposed findings of fact
consistent with the jury's findings. (R. 2 at 45.) This course of
action was insufficient to protect Goodgame and Brown's right to a
jury trial on their § 1981 claims.8
Goodgame and Brown contend that the court should have granted
them a new trial and allowed a properly instructed jury to decide
if the promotions at issue involved new and distinct relationships
instead of granting ACIPCO judgment as a matter of law based on its
finding that Goodgame and Brown had waited "too late" to raise
claims under "old" § 1981. (R. 2-57 at 4.) ACIPCO counters that
the trial court acted within its discretion when it denied Goodgame
and Brown's attempt to reassert their pre-1991 Act claims after the
court set aside the jury's verdicts. ACIPCO argues that Goodgame
8
Because the jury instructions did not distinguish the Title
VII claims from the § 1981 claims, it is unclear whether the jury
found for Goodgame based on his Title VII claim, his § 1981
claim, or both. But Brown's award, based on the December 1989,
Short promotion, necessarily rested on his § 1981 claim, because
the court had ruled that the Title VII claim concerning the Short
promotion was untimely.
and Brown should be bound by their decision to proceed under the
new act.
We review a trial court's denial of a motion for a new trial
for an abuse of discretion. Verbraeken v. Westinghouse Elec.
Corp., 881 F.2d 1041, 1049 (11th Cir.1989). In this case, the
trial court realized that the jury had been misinstructed and took
remedial action. The issue is whether the trial court acted
properly in repairing the damage caused by the erroneous
instructions.
We disagree with the trial court's conclusion that, because
Goodgame and Brown waited until after the trial to assert the
issue, they had no right to have a jury consider whether the
disputed promotions rose "to the level of an opportunity for a new
and distinct relation between the employee and the employer."
Patterson, 491 U.S. at 185, 109 S.Ct. at 2377. Goodgame and Brown
should not have been expected to tailor their § 1981 claims to be
consistent with both pre-1991 law and the 1991 Act once the trial
court held that the 1991 Act applied to their claims and allowed
them to amend their complaint accordingly. The existence of a "new
and distinct relationship" as required by Patterson was the only
element of Goodgame's and Brown's causes of action omitted from the
instructions the jury received. Since a properly instructed jury
arguably could find for Goodgame and Brown, the proper remedy in
this case was a new trial, not judgment as a matter of law for
ACIPCO.9 A new trial is the remedy this court generally orders
9
We express no opinion as to whether the evidence offered at
trial presented a jury question as to a new and distinct
relationship. The district court has not addressed this issue.
when it reverses based on incorrect jury instructions. See Bank
South Leasing, Inc. v. Williams, 778 F.2d 704, 707 (11th Cir.1985)
(remanding for new trial where evidence existed in support of
different result given a properly-instructed jury); Johnson v.
Bryant, 671 F.2d 1276, 1280 (11th Cir.1982) (stating that reversal
is warranted where we are left with "a substantial and ineradicable
doubt" as to whether the jury was properly guided in its
deliberations) (citation omitted); but see Mojica v. Gannett Co.,
7 F.3d 552, 560 (7th Cir.1993) (declining to remand for new trial
under proper version of § 1981 where plaintiff presented no
evidence during trial that promotion to different time slot would
have involved new and distinct relations with employer), cert.
denied, --- U.S. ----, 114 S.Ct. 1643, 128 L.Ed.2d 363 (1994).
We conclude that the trial court's denial of Goodgame and
Brown's request for a new trial as to two of the plaintiffs' § 1981
10
claims was an abuse of discretion. We therefore reverse and
remand for a new trial on Goodgame's § 1981 claim and Brown's §
Goodgame and Brown were not, under the trial court's ruling,
called upon to present such evidence; that being the case, it
would be unfair to decide the issue without allowing them an
opportunity to present evidence. See Wall v. Trust Co. of
Georgia, 946 F.2d 805, 808-09 (11th Cir.1991) (comparing aspects
of two jobs in weighing whether new and distinct relationship
would arise); Patterson v. McLean Credit Union, 784 F.Supp. 268,
284 (M.D.N.C.1992) (listing factors to consider in determining
claims under § 1981), on remand from Patterson, 491 U.S. 164, 109
S.Ct. 2363, aff'd, 39 F.3d 515 (4th Cir.1994).
10
The trial court did not abuse its discretion in disposing
of Brown's other § 1981 claims. Since the jury found no
wrongdoing on ACIPCO's part under the more liberal version of §
1981, no reasonable jury could have rendered a verdict for Brown
under the more rigorous standards of the prior version of § 1981.
We remand only those claims on which the jury based its awards
for the plaintiffs.
1981 claim based on the December 1989 Short promotion.
B. Punitive damages
Goodgame and Brown finally contend that the trial court erred
by vacating their punitive damage awards. They reason that the
awards, even though impermissible under "old" Title VII, should be
allowed to stand based on their § 1981 claims. ACIPCO counters
that the trial court's decision was clearly mandated by precedent
holding that punitive damages remain unavailable for Title VII
claims arising before the effective date of the 1991 Act. ACIPCO
argues that the issue of punitive damages under § 1981 is
irrelevant or at least premature, since such damages are available
only if Goodgame and Brown first show that new and distinct
relationships would have resulted from the promotions at issue.
We agree with ACIPCO that the trial court's action was
dictated by Landgraf, Rivers, and Curtis. We are bound by the same
precedent to affirm the trial court's decision to vacate the jury's
punitive damage awards because Goodgame and Brown were not entitled
to seek punitive damages under the applicable version of Title VII,
and because the jury was not properly instructed on their § 1981
claims. Accord Dombeck v. Milwaukee Valve Co., 40 F.3d 230, 235
(7th Cir.1994). But, in light of our decision to remand two of the
§ 1981 claims, Goodgame and Brown may on retrial seek punitive
damages, if they first succeed in showing that the promotions at
issue involved new and distinct relationships as required by
Patterson. If the promotion decisions are actionable, Goodgame and
Brown can properly recover punitive damages if they demonstrate
that ACIPCO was driven by an "evil motive or intent" in refusing to
promote Goodgame and Brown, or that ACIPCO's conduct "involve[d]
reckless or callous indifference to the federally protected rights
of others." Stallworth v. Shuler, 777 F.2d 1431, 1435 (11th
Cir.1985).
V. CONCLUSION
For the foregoing reasons, we AFFIRM IN PART, REVERSE IN PART,
and REMAND for a new trial as to Goodgame's § 1981 claim and
Brown's § 1981 claim based on the December 1989 Short promotion.
AFFIRMED IN PART; REVERSED IN PART, and REMANDED.