is a routine contract action where the parties would be entitled to a jury under the Seventh Amendment." Id. at 838. Therefore, the court concluded that parties to a suit for backpay under the ADEA were entitled to a jury trial. Id. at 839. However, Rogers does not end our inquiry since the court there was presented solely with claims for monetary relief. Thus the question becomes whether the right to a jury trial on the issue of backpay as established by Rogers is altered by plaintiff's additional requests for equitable relief.
A number of courts have grappled with the problem of the availability of a jury trial where the plaintiff has requested reinstatement and injunctive relief in addition to backpay. Two recent circuit court decisions are fairly representative of the split in authority which has developed over this issue. In Pons v. Lorillard, 549 F.2d 950 (4th Cir. 1977), the Fourth Circuit held that plaintiff's right to a jury trial on the backpay issue was unaffected by an added claim for equitable relief,
while the Sixth Circuit, in Morelock v. NCR Corp., 546 F.2d 682 (6th Cir. 1976), has characterized an action seeking reinstatement with backpay as essentially equitable in nature and thus not within the ambit of the Seventh Amendment guarantee.
Since the Third Circuit has determined that a claim solely for money damages is legal in nature entitling the parties to a jury trial, we are inclined to adopt the stance taken in Pons v. Lorillard, supra.
In Morelock, the court commenced its analysis, noting: "The propriety of jury trials in cases presenting such mixed questions of law and equity is determined by the nature of the issue to be tried." 546 F.2d at 685, citing Ross v. Bernhard, 396 U.S. 531, 538, 24 L. Ed. 2d 729, 90 S. Ct. 733 (1970). The court ascertained a close relationship between the remedial portions of the ADEA and the enforcement powers granted courts in Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-1 et seq. and the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et seq. 546 F.2d at 686-89. In both Title VII and FLSA cases, the availability of monetary relief in conjunction with injunctive relief has been deemed to be equitable in nature or an integral part of the equitable remedy.
Id. at 687-88. The court also recognized that the enforcement sections of the FLSA, 29 U.S.C. §§ 216, 217, are incorporated into the ADEA by 29 U.S.C. § 626(b). 546 F.2d at 688. Noting that the breadth of power and discretion in fashioning remedies granted the court by the ADEA carried the traditional indicia of equitable relief and resembled the powers vested in the court by Title VII and the FLSA, the Sixth Circuit concluded that a claim for backpay with reinstatement and injunctive relief presented equitable issues not suitable for a trial by jury. Id. at 689.
The Fourth Circuit reached a different result from Morelock by employing a different analysis. Rather than initially looking at the remedies requested as a whole, the court followed the mandate of Ross v. Bernhard, 396 U.S. 531, 24 L. Ed. 2d 729, 90 S. Ct. 733 (1970) and Dairy Queen, Inc. v. Wood, 369 U.S. 469, 8 L. Ed. 2d 44, 82 S. Ct. 894 (1962) to determine whether there were both legal and equitable claims in the case. 549 F.2d at 953. To accomplish this, the Fourth Circuit focused solely upon plaintiff's request for lost wages. After noting that the remedial sections of the FLSA are part of the ADEA, the court acknowledged that claims for backpay made under the private enforcement section of the FLSA, 29 U.S.C. § 216(b), are "legal in nature and uniformly accorded a jury trial." 549 F.2d at 953. The court decided that claims for reinstatement and injunctive relief were equitable in nature. Having decided that plaintiff was seeking both legal and equitable relief, the Fourth Circuit applied the Ross test to determine if plaintiff's right to a jury trial on the backpay claim withstood the addition of several equitable claims.
The ultimate analysis to determine whether a suit is one "at common law" within the Amendment seems to be the three-pronged classical test: (1) Is the issue legal rather than equitable under the custom of the courts of law; (2) Is the remedy legal; (3) Is the issue triable to a jury given the jurors' practical abilities and limitations? Where issues of law and equity are intertwined in one suit, those meeting the three-pronged test merit a trial by jury.
Id. (citations and footnote omitted); see Ross v. Bernhard, supra 396 U.S. at 538 n.10.
The Pons court concluded that the first prong was satisfied since employment discrimination claims seeking backpay under the ADEA were "analogous to the common law action for breach of contract by wrongful discharge or an action in tort, with the Age Act creating the legal duty." 549 F.2d at 954. This conclusion is reinforced by the Third Circuit's observation that a suit for backpay by an employee "is a routine contract action." Rogers v. Exxon Research & Engineering Co., supra at 838. It is also clear that the remedy sought, money damages, fulfills the second requisite of the Ross test. Finally, we agree with the Pons court that the computation of relief in this case is well within the realm of the jury's abilities. 549 F.2d at 954.
In sum, since Rogers has decided that a claim for backpay standing alone entitles the plaintiff to a jury trial on that issue, we cannot accept the analysis proposed by the Sixth Circuit in Morelock. We are presented with a suit involving both legal and equitable remedies, and thus we shall apply the three-pronged test of the Ross case. Since all the elements of that test are fulfilled, plaintiff retains his right to a jury trial on the backpay claim notwithstanding his additional requests for equitable relief. Therefore, defendant's motion to strike plaintiff's request for a jury trial will be denied.
DANIEL H. HUYETT, 3RD / J.
NOW, June 17, 1977, for the reasons stated in the accompanying memorandum, IT IS ORDERED that:
1. Defendant's motion to dismiss Count Two of the complaint for failure to state a claim is GRANTED.
2. Defendant's motion to strike plaintiff's demand for a jury trial is DENIED.
DANIEL H. HUYETT, 3RD / J.