Opposition Brief — Mojica v. Gannett Co.

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() DEC 20 1993 |

No. 93-800 LOFFICE OF THE CLERK | ©

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

IRENE MOSJICA,

y Petitioner,

GANNETT COMPANY, INC.

OWNER OF WGCI-FM RADIO STATION,

Respondent.

On Petition for Writ of Certiorari

To the United States Court of

Appeals for the Seventh Circuit

BRIEF OF GANNETT COMPANY, INC.

IN OPPOSITION TO THE

PETITION FOR WRIT OF CERTIORARI

~*~

Lawrence C. DiNardo

Counsel of Record

Elise A. Olgin

SEYFARTH, SHAW,

FAIRWEATHER & GERALDSON

55 East Monroe Street

Suite 4200

Chicago, Illinois 60603

(312) 346-8000

Attorneys for Respondent

BEST AVAILABLE COPY!

TABLE OF CONTENTS

Page

Cees Ga ee ee ok a es Pk Pe a ee il

8 Shae 6M yg iO Os & ot) er ]

SES EEE Ac oe kas as he a I

APRA SS RBs BON WA BORE 2 Oi a es hae ie ele ea kT 2

COUNTER-STATEMENT OF THE CASE ........ 2

SUMMARY OF THE ARGUMENT............. 4

ARGUMENT

I. The Retroactivity Of The Civil Rights Act of

1991 Is Currently Being Considered By This

Court In Landgraf v. USI Film Products, cert.

wanted... US. _.., 113 SOX E50 C1995)... .. s

Il. The Court of Appeals Correctly Concluded That

The Civil Rights Act of 1991 Only Applies

ee a are a ee oe ee a 6

Ce IN ne 5 Wo ay a ne ee ee eS a)

TABLE OF AUTHORITIES

Cases Page

Bowen v. Georgetown University Hospital, 488 U.S.

ae, Te SAA. MOB CIS) i ee ee er 6

Claridge Apartments Company v. Commissioner of

Internal Revenue, 323 U.S. 141, 164, 65 S.Ct. 172

CTNES 5-456 ok SR Pe ee eee 7

Greene v. United States, 376 U.S. 149, 160, 84

SA, OES Ce) ek cee ee ee ee 7

Irene Moyica v. Gannett Company, Inc., owner of

WGCI-FM Radio Station, December 13, 1991

United States District Court for the Northern |

District of Illinois Memorandum Opinion and

Order denying, in part, Defendant’s Motion for

Judgment Notwithstanding the Verdict ......... 3

Irene Moyica v. Gannett Company, Inc., owner of

WGCI-FM Radio Station, 779 FSupp. 94 (N.D. IIL. |

ROPE Ps <4 5-6 sd A as lack 4 3

Irene Mojica v. Gannett Company, Inc., owner of

WGCI-FM Radio Station, — F.2d __, 1993 US.

App. LEXIS 24897 (7th Cir. 1993)............ 3,4, 5, 6

Kaiser v. Aluminum & Chemical Corporation v.

Bonjorno, 494 U.S. 827, 110 S.Ct. 1570, 1586

NO oe ee 7

Landgraf v. USI Film Products, cert. granted,

sie NO my BS BAA, TA 4,5

Miller v. United States, 294 U.S. 435, 439, 55 S.Ct.

OP EOD 6s os pee ee ae eee

Murray v. Gibson, 56 U.S. 421, 423 (1854). .......

United States v. Heth, 7 U.S. (3 Cranch) 399, 413

RRO E64 5 uaS ale on 0 a ky 7

United States v. Magnolia Petroleum Company, 276

U.S. 160, 162-163, 48 S.Ct. 236 (1928) ......... 7

United States v. Security Industrial Bank. 459 U.S. 70.

79, 103 S. Ct. 407 (1982)

Sfatutes

Civil Rights Act of 1866 (42 U.S.C. § 1981)

Civil Rights Act of 1991 (Pub. L. No. 102-166.

Sec. LOL(2)(b))

Othe

Seventh Circuit Rule 40(f)

a

No. 93-800

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

IRENE MOJICA.

y Petitioner,

GANNETT COMPANY. INC.

OWNER OF WGCI-FM Rapio STATION.

Respondent.

On Petition for Writ of Certiorari

To the United States Court of

Appeals for the Seventh Circuit

BRIEF OF GANNETT COMPANY, INC.

IN OPPOSITION TO THE

PETITION FOR WRIT OF CERTIORARI

QUESTION PRESENTED

Whether the United States Court of Appeals for the Sev-

enth Circuit was correct in holding that conduct occuring before

the enactment of the Civil Rights Act of 1991, Pub. L. 102-166. is

not covered by the Act?

JURISDICTION

The judgment of the Court of Appeals was entered on

September 27, 1993. This Court has jurisdiction to review the

judgment of that Court under 28 U.S.C. Section 1254(1),

i]

STATUTES INVOLVED

Civil Rights Act of 1964, 42 U.S.C. §§ 2000(e) et. seq.

Civil Rights Act of 1866, 42 U.S.C. § 1981

Civil Rights Act of 1991, Pub. L. No. 102-166

COUNTER-STATEMENT OF THE CASE

A. Factual Background

Plaintiff is currently employed by Gannett as an overnight

(1:00 a.m. — 5:00 a.m.) disc jockey on WGCI-FM radio, a

Gannett-owned urban contemporary! radio station in Chicago

(R. 504). Plaintiff was initially hired by Gannett on July 27, 1979

as a part-time staff announcer on WVON-AM, the predecessor

of the current WGCI-AM, and subsequently became a full-time

disc jockey on that station in September, 1981 (R. 502). In

January, 1987 Plaintiff became the full-time overnight disc

jockey on WGCI-FM (R. 182). She currently holds this position

(R. 177, 246-250, 402, 504).

Plaintiff alleged in her Complaint that, since joining the FM

staff of WGCI in January, 1987, she has been denied the

opportunity to transfer to a more desirable and more lucrative

shift than the overnight shift to which she was assigned

(R. Doc. 1). In support of her claim that she was denied such a

transfer on the basis of her sex and national origin (Hispanic),

Plaintiff relied principally on a comment allegedly made to her in

the early 1980's by the station’s General Manger, Marv Dyson,

that he would not assign her to a non-overnight shift because she

was not “a Black male” (R. 65, 91-92). Dyson denied ever

making this comment (R. 440). Although Plaintiff's claims were

couched in terms of national origin discrimination, the gist of her

complaint was that she felt that she received less favorable

treatment not because she was Hispanic, but because she was not

Black.

' Urban contemporary music is an industry term referring to music

performed primarily by Black or African-American artists (R. 368-69).

B. Procedural Background

Plaintiff filed suit in the United States District Court for the

Northern District of Illinois on July 6, 1990, alleging that she was

paid less than male disc jockeys in violation of the Equal Pay Act

and Title VII, sexually harassed in violation of Title VII, and

denied more favorable air-shift assignments on the basis of her

sex, her national origin, and in retaliation for complaining of

discrimination, in violation of Title VII and 42 U.S.C. § 198]

(R. Doc. 1).

On November 12, 1991, in anticipation of the passage of the

Civil Rights Act of 1991, Plaintiff filed a Motion to Amend her

Complaint to include claims of compensatory and punitive dam-

ages and for a jury trial under the new statute (R. Doc. 40). On

November 27, 1991, six days after the Civil Rights Act was signed

into law, the District Court granted Plaintiff's Motion, holding

that the Act applied retroactively to Plaintiff's claims. /rene

Mojica v. Gannett Company, Inc., 779 FSupp. 94 (N.D. IIL. 1991).

Pursuant to the District Court's ruling, all of Plaintiff's

claims were tried to a jury on December 2-5, 1991. The jury

reached a verdict in favor of the Plaintiff on the national origin

shift denial claim in the amount of $35,000 and awarded Plaintiff

an additional $125,000 in punitive damages. The jury’s verdict

was in favor of the Defendant on all of the remaining claims.

lrene Mojica v. Gannett € ompany, Inc., owner of WGCI-FM Radio

Station, —_. F2d —_, 1993 U.S. App. LEXIS 24897 (7th Cir.

1993) (included in Appendix to Petition for Writ of Certiorari to

the United States Court of Appeals for the Seventh Circuit, 37a)

(hereinafter “Petitioner's Appendix, “). On December 13,

1991, the District Court granted in part Defendant's Motion for

Judgment Notwithstanding the Verdict and set aside the jury's

award of punitive damages (Memorandum Opinion and Order

denying, in part, Defendant’s Motion for Judgment Notwith-

standing the Verdict) (Petitioner's Appendix, 54a-61a).

The Appellate Court reversed the District Court's ruling

regarding the retroactive application of the Civil Rights Act of

1991 and vacated the jury's national origin verdict for Petitione:

under both Section 1981 and Title VII. The Court also reversed

and remanded the case to the District Court for retrial of Pet

tioner’s Title VII national origin claim. /rene Mojica v. Gannett

Company, Inc., owner of WGCI-FM Radio Station, F.2d

1993 U.S. App. LEXIS 24897 (7th Cir. 1993) (Petitioner's

\ppendix, 16a)

SUMMARY OF THE ARGUMENT

There are at least two reasons why certiorari should be

denied. First, the retroactivity of the Civil Rights Act of 1991 ts

currently being considered by this Court in Landeraf v. UST Film

Products, cert. granted, U.S ~ 113 8S. Ct. 1250 (1993). The

disposition of this case should be in accordance with the ultimats

ruling in Landgraf, to the extent applicable. Second, the Court of

Appeals was correct in concluding that Sections 101 and 102 of

the Civil Rights Act of 1991 only apply prospectively, based on

this Court’s most recent cases reaffirming the presumption

against the retroactive application of statutes which alter sub

stantive rights

Petitioner mischaracterizes the Per Curiam order of the Court of

\ppcals pursuant to Circuit Rule 40(f) dated March 4, 1993 directing that

the matter be considered en banc, and the dissenting opinion of Circuit

Judge Cummings from that Order, as a “panel decision.” Petition for Writ

of Certiorari, pp. 4, 6, 7 (hereinafter, “ Mojica’s Petition’). In fact, no panel

decision ever issued because of the invocation of Circuit Rule 40(f) by

Judge Manion, a member of the original panel (Circuit Rule 40 is repro

duced in the Appendix attached to this Brief at page 1a)

ARGUMENT

I. The Retroactivity Of The Civil Rights Act of 1991 Is

Currently Being Considered By This Court In Landgraf

v. USI Film Products, cert. granted, US. ; 113 S.Ct.

L250 (1993)

As Petitioner concedes in her Petition for Writ of

Certiorari, this case presents the identical question of the

retroactivity of the Civil Rights Act of 1991 (Pub. L. No. 102-166)

heard by this Court in oral argument on October 13, 1993 in

Landeraf v. USI Film Products, cert. granted, U.S. , 113

S.Ct. 1250 (1993). Mojica’s Petition, page 3. This Court should

deny Mojica’s Petition because it would be a waste of this Court’s

and the parties’ resources to grant certiorari in a case which

presents an issue identical to an issue that this Court is currently

considering in another case.

Phe Seventh Circuit reversed the United States District

Court for the Northern District of [linois ruling regarding the

retroactive application of the Civil Rights Act of 1991 and

vacated the jury’s national origin verdict for Petitioner under

both Section 1981 and Title VII. The Seventh Circuit Court also

reversed and remanded to the District Court for retrial on

Petitioner’s Tithe VIT national origin discrimination claim. /rene

Mojica v. Gannett Company, Inc., owner of WGCI-FM Radio

Station, F.2d , 1993 U.S. App. | EXIS 24897 (7th Cir.

1993) (Petitioner’s Appendix, 16a). Certainly, the most prudent

and efficient course of action Is to proceed with this case in light

of the eventual ruling in Landgraf, supra. The District Court can

simply await this Court’s decision in Landgraf before proceeding

furthe!

6

Il. The Court Of Appeals Correctly Concluded That The

Civil Riglits Act Of 1991 Only Applies Prospectively

The Seventh Circuit Court of Appeals correctly and clearly

concluded that sections 101 and 102 of the Civil Rights Act of

1991 apply only to conduct occurring on or after the

November 23, 1991 date of enactment:

[t]he weight of history and tradition, as well as

considerations of fairness, compel us to observe a

presumption against retroactive application of newly-

enacted statutes.

lrene Mojica v. Gannett Company, Inc., owner of WGCI-FM Radio

Station, ___ F2d __, 1993 U.S. App. LEXIS 24897 (7th Cir.

1993) (Petitioner’s Appendix, 8a).

In sum, the district court erred by applying the new Act

to this case. Because Gannett’s alleged failure to

promote Mojica — the conduct giving rise to her

claim — took place before the enactment of the new

Act, the former civil rights laws govern her case. To the

extent some provisions of the new Act may apply to

pending trials, no such provisions are implicated in this

appeal.

(Petitioner's Appendix, 12a)

The district court erred by applying the Civil Rights Act of

1991 retroactively to this case.

(Petitioner's Appendix, 16a)

The Appellate Court’s decision relies on this Court’s most

recent cases which reaffirm the presumption against

retroactivity. Bowen v. Georgetown University Hospital, 488 U.S.

204, 109 S.Ct. 468 (1988) (“retroactivity is not favored in the law.

Thus, congressional enactments and administrative rules will not

be construed to have retroactive effect unless their language

7

requires this result.”) (citing Greene v. United States, 376 U.S.

149, 160, 84 S.Ct. 615 (1964)).3 The soundness of the

presumption against retroactivity was noted most recently by

Justice Scalia in Kaiser v. Aluminum & Chemical Corporation v.

Bonyjorno, 494 U.S. 827, 110 S.Ct. 1570, 1586 (1990) (Scalia, J.,

concurring) (“[t]he principle that the legal effect of conduct

should ordinarily be assessed under the law that existed when the

conduct took place has timeless and universal human appeal.”’)

In light of this Court’s most recent reiteration of the long-

standing presumption against retroactivity, and the clarity and

guidance which such a rule provides for both litigants and the

courts, this Court should follow its precedent of applying the

presumption against retroactivity and not disturb the Appellate

Court’s decision.

* Claridge Apartments Company v. Commissioner of Internal Revenue, 323

U.S. 141, 164, 65 S.Ct. 172 (1944); Miller v. United States, 294 U.S. 435, 439,

55. S.Ct. 440 (1935); United States v. Magnolia Petroleum Company, 276 U.S.

160, 162-163, 48 S.Ct. 236 (1928). See also United States v. Security Industrial

Bank, 459 U.S. 70, 79, 103 S.Ct. 407 (1982) (“The principle that statutes

operate only prospectively, while judicial decisions operate retrospectively,

is familiar to every law student”); United States v. Heth, 7 U.S. (3 Cranch)

399, 413 (1806) (“words in a statute ought not to have a retrospective

operation, unless they are so clear, strong, and imperative, that no other

meaning can be annexed to them, or unless the intentions of the legislature

cannot be otherwise satisfied.”); Murray v. Gibson, 56 U.S. 421, 423 (1854)

(“[statutes] never should be allowed a retroactive operation where this is

not required by express command or by necessary and unavoidable

implication’).

8

CONCLUSION

The Petition for Writ of Certiorar! should be denied.

Respectfully submitted,

GANNETT COMPANY, INC.,

owner of WGCI-FM Radio Station

an, hi Yor

Lawrence C. DiNardo

Counsel of Record

Elise A. Olgin

SEY FARTH, SHAW,

FAIRWEATHER & GERALDSON

55 East Monroe Street — Suite 4200

Chicago, IL 60603

(312-346-8000)

Attorney for Respondent Gannett

Company, Inc.

APPENDIX

la

CIRCUIT RULE 40. Petitions for Rehearing

(a) Table of Contents. The petition for rehearing shall

include a table of contents with page references and a table of

cases (alphabetically arranged), statutes and other authorities

cited, with reference to the pages of the brief where they are

cited.

(b) Number of Copies. Fifteen copies of a petition for

rehearing shall be filed, except that 25 shall be filed if the peti-

lioner suggests rehearing in banc.

(c) Required Statement for Suggestion of Rehearing In Banc.

Suggestions that an appeal be reheard in banc shall state in a

concise sentence at the beginning of the petition why the appeal

is of exceptional importance or with what decision of the United

States Supreme Court, this court, or another court of appeals the

panel decision is claimed to be in conflict.

(d) Time for Filing After Decision in Agency Case. The date

on which this court enters a final order or files a dispositive

opinion is the date of the “entry of judgment” for the purpose of

commencing the running of the 14 day period for filing a petition

for rehearing in accordance with Rule 40(a), Fed. R. App. P,

notwithstanding the fact that a formal detailed judgment is

entered at a later date.

(c) Zime for Filing after Decision from the Bench. The 14-day

time limit for filing a petition for rehearing shall run from the

date of this court’s written order following a decision from the

bench.

(f) Rehearing Sua Sponte before Decision. A proposed opin-

ion approved by a panel of this court adopting a position which

would overrule a prior decision of this court or create a conflict

between or among circuits shall not be published unless it is first

circulated among the active members of this court and a majority

of them do not vote to rehear in banc the issue of whether the

position should be adopted. In the discretion of the panel, a

proposed opinion which would establish a new rule or procedure

5

ida

may be similarly circulated before it is issued. When the position

is adopted by the panel after compliance with this procedure, the

opinion, when published, shall contain a footnote worded,

depending on the circumstances, in substance as follows:

This opinion has been circulated among all judges of this

court in regular active service. (No judge favored, or A majority

did not favor) a rehearing in bane on the question of (c.g.,

overruling Doe v. Roe.)