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GUNBY v. PENNSYLVANIA ELEC. CO.

November 19, 1985

CHARLES GUNBY, JR., Plaintiff,
v.
PENNSYLVANIA ELECTRIC COMPANY, Defendant


Bloch, United States District J.


The opinion of the court was delivered by: BLOCH

BLOCH, District J.

 Plaintiff Charles Gunby, Jr. (Gunby) filed this action pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et. seq. (Title VII), and the Civil Rights Act of 1866, 42 U.S.C. § 1981 (§ 1981), alleging that the defendant Pennsylvania Electric Company discriminated against him by failing to promote or transfer him to a number of positions within the Company. Presently before the Court is defendant's motion for partial summary judgment with respect to Counts 2 through 6 of plaintiff's complaint. Further, defendant moves to strike plaintiff's demand for a jury trial under Title VII and to strike Count 7, since damages for mental anguish and emotional distress are not recoverable under Title VII. *fn1" For the reasons that follow, defendant's motion is granted in part and denied in part.

 I. Title VII as Plaintiff's Exclusive Remedy

 Defendant maintains that Title VII provides the exclusive remedy for discriminatory employment practices that allegedly violate rights set forth in Title VII. In support, defendant cites the Court to Rivera v. City of Wichita Falls, 665 F.2d 531, 534 n. 4 (5th Cir. 1982), where the Fifth Circuit held that consideration of § 1981 and § 1983 claims, as alternative remedies, is only necessary if their violation can be made out on different grounds from those available under Title VII. The Fifth Circuit's opinion offers no explanation or citation for this proposition, and this Court finds the Supreme Court's decision in Johnson v. Railway Express Agency, 421 U.S. 454, 44 L. Ed. 2d 295, 95 S. Ct. 1716 (1975), instructive on this point. In Johnson, the Supreme Court held that Title VII is not the exclusive remedy for claims of employment discrimination in the private sector and that exhaustion of administrative remedies under Title VII is not a prerequisite to an action under § 1981. Id. at 460-61. The Court's holding was derived primarily from an examination of the legislative history of Title VII, which demonstrated that Congress intended to allow aggrieved persons to independently pursue their rights under both Title VII and other applicable state and federal statutes. The Johnson Court noted that:

 
Despite Title VII's range and design as a comprehensive solution for the problem of invidious discrimination in employment, the aggrieved individual is not deprived of other remedies he possesses and is not limited to Title VII in his search for relief.

 Id. at 459.

 Further, in Brown v. GSA, 425 U.S. 820, 96 S. Ct. 1961, 48 L. Ed. 2d 402 (1976), the Supreme Court held that Title VII is the exclusive remedy for federal employees. In arriving at this conclusion, Brown makes clear that explicit legislative intent is controlling. Thus, the Supreme Court noted that in the legislative history of the relevant amendments to Title VII, Congress was silent regarding the exclusivity of remedies for federal employees permitting the Court to infer that Congress intended to preempt all non-Title VII remedies. In holding Title VII to be the exclusive remedy for federal employment discrimination, the Court distinguished Johnson noting as follows:

 
The petitioner relies upon our decision in Johnson v. Railway Express Agency, 421 U.S. 454, [44 L. Ed. 2d 295, 95 S. Ct. 1716] (1975), for the proposition that Title VII did not repeal pre-existing remedies for employment discrimination. In Johnson the Court held that in the context of private employment Title VII did not pre-empt other remedies. But that decision is inapposite here. In the first place, there were no problems of sovereign immunity in the context of the Johnson case. Second, the holding in Johnson rested upon the explicit legislative history of the 1964 Act which "'manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes.'" Congress made clear "'that the remedies available to the individual under Title VII are co-extensive with the individual's right to sue under the provisions of the Civil Rights Act of 1866, 42 U.S.C. § 1981, and that the two procedures augment each other and are not mutually exclusive.'" See also Jones v. Alfred H. Mayer Co., 392 U.S. 409, 415-417, 20 L. Ed. 2d 1189, 88 S. Ct. 2186 (1968). There is no such legislative history behind the 1972 amendments. Indeed, as indicated above, the congressional understanding was precisely to the contrary.

 Id. at 833-34 (citations omitted) (emphasis in original). *fn2"

 Even before Johnson, the Third Circuit, in Young v. International Telephone and Telegraph Co., 438 F.2d 757 (3d Cir. 1971), held that nothing in Title VII expressedly or impliedly imposes any jurisdictional barrier to a suit brought under § 1981. Plaintiff has an independent remedy under § 1981 without respect to exhaustion under Title VII. *fn3" See Croker v. Boeing Co., 662 F.2d 975, 989 (3d Cir. 1981) (en banc) ("we reject the . . . contention that section 1981 liability is coextensive with liability under Title VII. The remedies provided under the two statutes are 'separate, distinct, and independent.'"); Storey v. Board of Regents, 600 F. Supp. 838 (W.D. Wisc. 1985) (Title VII is not plaintiff's exclusive remedy). Accordingly, defendant's motion for partial summary judgment on Counts 2 through 6 of plaintiff's complaint is denied.

 II. Motion to Strike Demand for Jury Trial

 Defendant moves to strike plaintiff's demand for a jury trial on Gunby's Title VII claim. Since there is no right to a trial by jury in cases arising under Title VII, defendant's motion is granted. See Lehman v. Nakshian, 453 U.S. 156, 164, 69 L. Ed. 2d 548, 101 S. Ct. 2698 ...


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