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
 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. 

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
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
 2

The evidence showed that the wages Goodgame received after

Burnett was promoted exceeded Burnett's salary. 

 3After 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). 

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
 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. 

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
 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. 

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

jury trial on their § 1981 claims. 5

 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

treating the jury as advisory under Fed.R.Civ.P. 39(c). 6

 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
 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. 

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
 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. 

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
 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. 

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
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). 

 10The 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. 

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

claims was an abuse of discretion. 10 We therefore reverse and

remand for a new trial on Goodgame's § 1981 claim and Brown's §
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.