Opinion
No. C 02-1107 JL.
October 23, 2007
ORDER
Introduction
This Court sua sponte considers whether Plaintiff's claim for lost wages should be decided at trial by the Court or by the jury. Plaintiff in his Complaint alleges the Defendants' liability under Section 504 of the Rehabilitation Act of 1973 ( 29 U.S.C. § 794), the Americans With Disabilities Act of 1990 ("ADA") ( 42 U.S.C. § 12101 et seq.), the California Unruh Civil Rights Act (California Civil Code §§ 51, 52).
This Court has original jurisdiction over the federal claims and supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367, as the claims under California law arise from the same facts and circumstances as the federal claims and form part of a single case or controversy. All parties consented to the jurisdiction of this Court as provided by 28 U.S.C. § 636(c) and Civil Local Rule 73.
Claim for Lost Wages
Plaintiff seeks as damages "His actual damages, including damages for delay in graduation from the Law School and corresponding delay in obtaining employment, the loss of summer employment opportunities, and damages for emotional distress, upset and suffering." (Pltf. Complaint)Back Pay Generally
An award for lost wages is an equitable remedy, because it is a form of restitution and the award is committed to the trial court's discretion. Curtis v. Loether (1974) 415 US 189, 197.
In Lutz v. Glendale Union High School, the Ninth Circuit expressly held that any award of back pay, such as the award for lost wages that Plaintiff seeks in this case, is an equitable remedy for the court to decide, under both the ADA and accompanying state law. Id. at 403 F.3d 1061, 1067-1070 (9th Cir. 2005).
"Lutz also requested that a jury determine the appropriate amount of back pay, but Glendale argues that, under the ADA, back pay is a matter for resolution by the court, not an issue triable of right by a jury. The Seventh Amendment jury trial right extends only to "Suits at common law," which refers to "suits in which legal rights [are] to be ascertained and determined, in contradistinction to those where equitable rights alone [are] [recognized], and equitable remedies [are] administered."
"The question, then, is whether back pay under the ADA is a legal or an equitable remedy. The ADA expressly incorporates the remedies available under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-4, 2000e-5, 2000e-6, 2000e-8, 2000e-9. See id. § 12, 117(a). Title VII, in turn, authorizes the district court to "order such affirmative action as may be appropriate, which may include . . . reinstatement . . ., with or without back pay . . ., or any other equitable relief as the court deems appropriate." Id. § 2000e-5(g)(1). The reference to "other equitable relief," id. (emphasis added), would make sense only if the relief previously described — reinstatement, which may be awarded with or without back pay — is itself equitable.
"Following Slack, we would hold that Lutz's request for back pay, which she included along with her demand for reinstatement, sought an equitable remedy, but we must first decide whether Slack is still good law. When we decided Slack, "Title VII afforded only `equitable' remedies." Congress subsequently adopted the Civil Rights Act of 1991, which expanded the remedies available under Title VII. An employee may now recover "compensatory and punitive damages" for certain Title VII violations, 42 U.S.C. § 1981a(a)(2), and he is entitled to have a jury determine the amount of such awards, id. § 1981a(c)(1).
"However, Congress provided that the compensatory and punitive damages remedies it created were "in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964," as amended, 42 U.S.C. § 2000e-5(g). Id. § 1981a(a)(2); Thus, Congress did not alter the remedial scheme it had established for back pay. See 42 U.S.C. § 2000e-5(g). In fact, Congress excluded back pay from the types of damages for which it authorized a jury trial. See id. § 1981a(b)(2) ("Compensatory damages awarded under this section shall not include Back pay. . . ."); id. § 1981a(c)(1) (granting a jury trial right where "a complaining party seeks compensatory or punitive damages under this section"). In light of the nearly uniform view of the courts of appeals that back pay under Title VII must be tried to the court, it is particularly telling that Congress provided a jury trial right for some Title VII claims while expressly declining to do so for back pay.
"Accordingly, we hold that there is no right to have a jury determine the appropriate amount of back pay under Title VII, and thus the ADA, even after the Civil Rights Act of 1991. Instead, back pay remains an equitable remedy to be awarded by the district court in its discretion.
"Lutz also requested back pay under the Rehabilitation Act and the Arizona Civil Rights Act. Because the Rehabilitation Act, like the ADA, incorporates Title VII's back pay remedy, see 29 U.S.C. § 794a(a)(1) (incorporating 42 U.S.C. § 2000e-5(g)), Lutz is not entitled to a jury trial on her back pay claim under that act. And since Title VII caselaw is persuasive in interpreting the Arizona Civil Rights Act, we do not interpret Arizona law as entitling Lutz to a jury trial on her state law request for back pay. See Ariz. Rev. Stat. § 41-1481(G) (remedies for employment discrimination "may include . . . reinstatement or hiring of employees with or without back pay . . . or any other equitable relief as the court deems appropriate.")
"If the district court holds for Lutz on the question of liability, it therefore cannot reinstate the jury's verdict as to the appropriate amount of back pay under any of the three acts Lutz claims Glendale violated. Rather, the district court must exercise its discretion to determine an appropriate amount of back pay, if any."Lutz v. Glendale Union High School District, 403 F.3d 1061, 1067-1070 (9th Cir. 2005) (internal citations omitted).
The Unruh Act has adopted "the full expanse of the ADA," Presta v. Peninsula Corridor Joint Powers Board, 16 F.Supp.2d 1134, 1135 (N.D.Cal. 1998). This includes the remedies available, which are those provided by Title VII. In the case at bar, the California Civil Rights Act, Cal. Civil Code § 51 et seq., the "Unruh Act," like the Arizona statute alluded to in Lutz, incorporates the remedial provisions of Title VII, including back pay as an equitable remedy, to be determined "by a jury, or a court sitting without a jury." Cal. Civ. Code § 52. Therefore, the holding in Lutz is also applicable to all the causes of action in this case, and any award for lost wages is for the Court, not the jury, to decide.
Procedural Question
Plaintiff demanded a jury trial as part of his Complaint. Defendants did not object to the jury demand. What effect does this have on whether the lost wages claim should be tried by the Court or by a jury?
Where the parties both consent to have an action for equitable relief tried by a jury, the Court has discretion to submit the claim for a non-advisory jury determination, pursuant to Fed.R.Civ.P. 39(c). The rule distinguishes between an advisory jury determination, for which the parties' consent is unnecessary, and a non-advisory jury determination, for which the parties' consent is required. A non-advisory jury determination has the same effect as if a jury trial right existed.
The full rule states:
"Advisory Jury and Trial by Consent. In all actions not triable of right by a jury the court upon motion or of its own initiative may try any issue with an advisory jury or, except in actions against the United States when a statute of the United States provides for trial without a jury, the court, with the consent of both parties, may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right.
Where a party demands a jury trial on an issue that is not jury triable, the opposing party's failure to object may be deemed "consent" to the jury. [See FRCP 39(c); Broadnax v. City of New Haven, 415 F3d 265, 270-272 (2nd Cir. 2005) — defendant's failure to object to plaintiff's demand for jury trial on lost wages under Title VII (equitable remedy) was deemed consent to jury determination].
The court in Broadnax concluded that it had discretion to submit a claim for lost wages to a non-advisory jury where the parties either consented or didn't object: "we agree with the Seventh Circuit that having juries calculate lost wages requires no special competence or authority belonging solely to the court . . . we find sensible the proposition that where a party requests a jury determination of an issue requiring no special competence or authority belonging solely to the court, and the other party or parties fail to object, such silence may be deemed "consent" under Rule 39(c). Consequently, we hold that when a party demands jury consideration of lost wages under Title VII and the party's opponent fails to object, Rule 39(c) permits the district court to submit the lost wages issue for a non-advisory jury determination." Broadnax, 415 F.3d at 272.
Consequently, if the parties do not object, a non-jury claim may be tried and decided by a jury. In Whiting v. Jackson State University, 616 F.2d 116 (5th Cir. 1980), the district court had submitted the plaintiff's request for equitable relief under section 706 to the jury, without objection from either side. Id. at 123. The jury returned a verdict in favor of the plaintiff for, inter alia, unpaid salary with interest-that is, back pay. Id. at 120 n. 2. Invoking Rule 39(c), the circuit court held that "[b]y failing to object, the parties agreed that the jury's verdict on the claims for equitable relief was to have the same effect as if a right to a jury trial existed." Id. at 123; see also Bereda v. Pickering Creek Indus. Park, Inc., 865 F.2d 49, 52 (3d Cir. 1989) (holding that where both parties had requested a jury trial on Title VII and other claims "and the subject of an advisory jury was never mentioned at any time during the proceedings, [the plaintiff] and [the defendant] must be deemed to have consented to a trial by a nonadvisory jury under Rule 39(c)"); Hildebrand v. Bd. of Trs. of Mich. State Univ., 607 F.2d 705, 710-11 (6th Cir. 1979) (stating in dictum that where both sides agreed to submit a question to the jury, even if no entitlement to jury determination existed, the district court had abused its discretion in treating the jury's finding as merely advisory).
Conclusion
In the case at bar Plaintiff made a timely jury demand for a non-jury claim, his claim for lost wages, an equitable remedy. Defendants did not object and therefore implied their consent to a jury trial of this claim. The Court retains discretion, pursuant to FRCP Rule 39, to try the case either with a non-advisory jury, with an advisory jury, or to the court. After examining the full record in this case, including the parties' pretrial submissions of exhibits, witnesses and their trial briefs, this Court concludes that in this case calculation of lost wages is a matter better left to the court. Although this is a lawsuit under Title II of the ADA for equal access to an educational facility for a disabled student, the damages at issue are for lost wages, a claim more often made in an employment context. Plaintiff Simonelli alleges that while he was a student at Boalt Hall School of Law at the University of California at Berkeley, he was denied full access to his legal education because of his disability. Specifically, he alleges inter alia that Defendants delayed his graduation by not giving him enlarged-print texts for his class reading assignments and textbooks in time for him to participate fully and stay caught up with his classes.
Order
Accordingly, the trial shall be bifurcated. Plaintiff's causes of action shall be tried by the jury, which will, if it finds liability, shall then calculate Plaintiff's damages for emotional distress, upset and suffering. The trial shall then proceed before the Court, without a jury, on Plaintiff's claim for lost wages as damages due to lost employment opportunities.
IT IS SO ORDERED.