STEPHEN H. GRAVES,

Plaintiff,
v. DI STRI CT OF COLUMBIA, Def endant. UNITED STAT ES DIS TRICT COURT

F OR THE DIS TRICT OF COLUM BIA

Civil Action No. 07-00156 ( CKK)

MEMORAN DUM OP INION AND ORDER

(F ebrua ry 17, 2012) Plaintiff Stephen H. Gra

ves bring s this employ

ment discrimination action ag ainst Def endant, the D istrict of Columbia, claiming that he was subjec ted to a ra cially hostile work environment duringthe cour se of his two-de cade car eer with the District’s Fir e and E merg ency Service s Depa

rtment. Gra

ves is pursuingtwo fac tually coextensive hostile work environme nt claims, the first under

Title VI Iof the Civil Ri g hts Act of 1964 and the second unde r Section 1981 of Title 42 of the U nited States Code. Graves cla ims that he was subjec ted to a ra cially hostile work environme nt throug hout his twenty y ear s of employ

ment with the District’s Fir e and E merg ency Service s Depa

rtment, which extended from September 5, 1985 throug h Fe bruar

y 12, 2006. I n support of his claims, he ha s identified a total of f

orty -nine sepa

rate incidents as the c omponent acts c omprising the a lleg ed hostile work environme nt. SeeRevised J oint Pretrial Stmt ., ECF No. [52], at 2-13. Nineteen of these incide nts alleg edly

occur red pr ior to November

21, 1991—the ef

fec tive date of

the Civil Rights Act of

1991, Pub. L . No. 102-166, 105 Stat. 1071. This Memorandum Opinion and O rder addre sses the District’s c ontention that Grave s is preclude d from re cover ing unde r both Title VI Iand Section 1981 for these ninete en incidents a s a matter of law bec ause the Civil Rights Act of 1991 does not apply

retroa ctively

to conduct pre dating its effe ctive date . The matter has bee n fully briefe d and is ripe f

or adjudication. SeeDef

. District of Columbia’s Trial B r. on Pl.’s Right to Recover

for Component Ac ts that Occur red B efor e the Ef

fec tive Date of

the Civil R ights Ac t of 1991 (“ Def

.’s Mem.”) , ECF No. [52-1]; P l.’s Opp’n to District of Columbia’s Revised Objections and Tr ial Br . (“Pl.’s Opp’n” ), ECF N o. [55] ; Reply to Pl.’s Opp’n to District of Columbi a’s Revised O bjects [sic] and Tria l Br., E CF No. [56] . I n an exerc ise of its discretion, the Court finds that holding a n oral a rgument would not be of a ssistance in re nderinga dec ision. See L C V R 7(f). Upon consider ation of the pa rties’ submissions, the releva nt authorities, and the r ecor d as a whole, the Court concludes a s follows: (i) Graves ca

n seek r elief unde r Title VI Ifor the nine teen incide nts predatingthe eff ective da te of the Civil Rights Act of 1991, but he cannot se ek compe nsatory damag es and is not entitled to a jury trial in connec tion with thos e incidents; (ii) Graves ca

nnot seek re cover

y under Sec tion 1981 for the ninetee n incidents predating the e ffe ctive date of the Civil Ri g hts Act of 1991; and (iii) Graves must expl ain how he w ould use evidenc e re lating to the nine teen incide nts as “ba ckg round evide nce” to be consider ed by the jury befor e the Court rule s on the admissibilit y

of such e vidence
. A. Grave

s Can Seek L im ited Relief for the Ninetee n In cidents Under Title V II The District c ontends that Graves is prec luded from r ecove ring under Title VI Ifor the nineteen inc idents that predate Novembe r 21, 1991, the e ffe ctive date of the Civil Ri g hts Act of
21991, arguing that the Act does not a pply retroa ctively
. See Def

.’s Mem. at 24. Graves counte rs 1 that he ca n rec over f

or these nine teen incide nts beca use he is proc eedingunder a “continuing violation” theory

and the a lleg ed hostile work e nvironment continued be y ond November 21, 1991. See Pl.’s Opp’n at 2. The Court f inds that the corr ect a

nswer lies somewhere in betwee n the par ties’ competingpositions. Section 102 of the Civil Ri g hts Act of 1991 conf err ed upon plaintiffs the r ight to re cover compensatory

and punitive damag es for cer tain violations of Title VI Iand to demand a trial by jury if such dama g es ar e soug ht. In Landgraf v. USI Film Products , 511 U.S. 244 (1994), the Supreme Court held that these rig hts cannot be a pplied to conduct pre dating the ef fec tive date of the Civil R ights Ac t of 1991. As observe d by the Court, “[b] efor e the e nactment of the 1991 Act, Title VI Ionly

aff orded ‘ equitable’ reme dies,” a nd “Section 102 sig nificantly expand[ ed] the monetary relief potentially

available to plaintiffs.” Id. at 253. Reasoningthat compensatory damag es make plaintiffs whole only “by a mec hanism that aff

ects the liabilities of def

endants,” the Court found that Section 102 re prese nted “the ty pe of le g al cha

ng e that would have an impact on private pa

rties’ planning .” Id. at 282. In short, Section 102 attache d new leg al conse quence s to primary

conduct c ompleted bef

ore its ena ctment, ra ising leg itimate conce rns about “f air notice, re asonable relianc e, and se ttled expectations.” Id. at 270. Ultimately , finding no indicia of cong ressional intent to apply these rig hts retroa ctively , the Supreme Court c oncluded that plaintiffs may

not rec over c ompensatory and punitive damag es or de mand a tria l by jury for 2
Be cause the District’s submission is not pag inated, the Court shall re fer to the pag e 1 numbers g ener ated by

the Court’s CM/ECF Sy stem. Be cause the Court found the rig ht to a jury trial inext rica

bly intertwined with the rig ht 2 to seek c ompensatory

and punitive damag es, it conclude d that “the jury trial option must s tand or 3conduct pr edatingthe ef fec tive date of

the Civil R ights Ac t of 1991. Id. at 286. I nTomasello v. Rubin , the United States Court of Appe als for the District of Columbia Circuit addre ssed a va

riation on this theme. L ike Gra ves, the plaintiff in Tomasello wanted to pursue a hostile work environme nt claim with conduct “stra ddling” the ef fec tive date of

the Civil Rights Act of

1991. The district cour

t bifurcated the proc eeding s, with the district court dec iding the pre -Nove mber 21, 1991 c onduct and the jur y decidingthe post-Novembe r 21, 1991 conduc t. Id. at 614. On appe al, the plaintiff a rgued that the pr e-N ovember 21, 1991 conduct should have also bee n tried by

the jury as par t of a “ continuing violation.” Id. Findingthe ar g ument fore closed by Landgraf

, the Court of Appe als “re jected [the] contention that application of Title VI Ias ame nded would not be r etroa ctive bec ause [the plaintiff] alleg ed a ‘ continuing violation,’ that is, the conduct g iving r ise to his claims that beg an bef ore the statute’s ef

fec tive date continued beyond that date.” Id. at 619-20. Tog ether , Landgraf

and Tomasello fore close Gr aves’ argument that he may seek compensatory

damag es under

Title VI Ifor the nine teen incide nts predatingNovember 21, 1991. These a uthorities are binding on the Court a nd permit no deviation. Contrary to what Gra

ves 3
fall with the attac hed dama g es provision.” Landgraf , 511 U.S. at 281. Fur thermore , the majority

of cour ts that have ha d the opportunity to addre ss the issue 3 have similarly

conclude d that a Title VI Iplaintiff may not rec over c ompensatory damag es or demand a jury trial for c onduct pre dating the ef fec tive date of

the Civil R ights Ac t of 1991, eve n wher e his or her

alleg ations “straddle ” that date
. See, e .g. , Y amaguchi v. U

.S. Dep’ t of the Air Force , 109 F.3d 1475, 1482 ( 9th Cir. 1997); Caviness v. Nucor-Yamato Steel Co. , 105 F.3d 1216, 1220 (8th Cir. 1997); Jonasson v. Lutheran Child & Family Serv s. , 115 F.3d 436, 439- 40 (7th Cir. 1997); Sank v. City Univ . of N.Y

. , No. 94 Civ. 253 (RW S), 2002 WL 1792922, at *4 (S.D.N.Y. Aug . 2, 2002), aff’d , 112 F. App’ x 761 (2d Cir. 2004), cert. de nied, 543 U.S. 1120 (2005). To the extent the United States Court of Appeals for the Fir st Circuit’s decision in DeNove llis v. Shalala , 124 F.3d 298 ( 1st Cir. 1997), refle cts a diff ere nt approa ch, it is contrar y to the law of this Ci rcuit and the weig ht of authority
. 4may

believe, the Supreme Court’s late r dec ision in National Railroad Passenger Corporation v. Morgan , 532 U.S. 101 (2002), is not inconsistent with Landgraf or Tomasello
. Morgan addre sses a plaintiff’ s ability to rec over f

or a hostile wor

k environment c laim that straddles the statutory time period for

filing c harg es under

Title VI I , not a hostile work envir onment claim that straddles the e ffe ctive date of the Civil Ri g hts Act of 1991. The former scena rio simply

does not implicate the re troac tivity conce rns that animated the Supreme Court’s de cision in Landgraf and the Court of Appe als’ dec ision in Tomasello
. For these re asons, the Court conc ludes that Graves ca nnot seek c ompensatory

damag es and is not entitled to a jury trial under T itle VI Ifor the nine teen incide nts predatingthe ef fec tive date of the Civil R ights Ac t of 1991. Howe ver, the Court depar ts with the District insofar as it intends to sugg est that Gra ves is absolutely

fore closed fr om pursuing a hostile work environme nt claim under

Title VI Ifor c onduct pre dating the Civil R ights Ac t of 1991. As the Supreme Court has obser ved, Section 102 may

have e x panded the scope of monetary relief available to Title VI I plaintiffs, but it did “not make unlawful c onduct that was la wful whe n it occurr ed.” Landgraf , 511 U.S. at 281-82; see also Rivers v . Roadway Expre ss, Inc. , 511 U.S. 298, 303 (1994) (“Sec tion 102 altered the liabiliti es of e mploy ers unde r Title VI Iby subjecting them to expanded monetary liability , but it did not alter the normative scope of Title VI I ’s prohibition on workplace discrimination.”). Eve n prior to the Civil Ri g hts Act of 1991, the Supre me Court rec og nized that a plaintiff c ould establish a violation of Title VI Iby proving that discrimination cre ated “ a hostile or abusive w ork environme nt.” Meritor Sav. Bank , FSB v. Vison , 477 U.S. 57, 66 (1986). I t just so happene d that a plaintiff pr ocee ding unde r such a theory prior to the Civil Ri g hts Act of 1991 was limited to “‘equitable ’ re medies,” the deter mination of which wa s entrusted to the district
5court a

nd not a jury
. Landgraf

, 511 U.S. at 252. Acc ording ly , the Court conclude s that Grave s can, at least hy

pothetically , seek r elief unde r Title VI Ifor the nine teen incide nts predatingthe eff ective da te of the Civil Rights Act of 1991 throug h a benc h proce edingand insofar as the relief he see ks is consistent with the lega l landscape in exi stence befor e the Civil Rights Act of 1991. He c annot see k compensatory damag es and is not entitled to a jury trial in connec tion with those incidents. Nonethele ss, the Court rec og nizes that it is far f rom self-e vident whether Graves ac tually seeks a ny relief in connec tion with the nineteen incidents that would ha ve bee n available to a Title VI Iplaintiff prior to the e nactment of the Civil R ights Ac t of 1991. SeeRevised J oint Pretrial Stmt. at 36-38 (outlining the r elief soug ht by Graves). Ac cording ly , by no later tha

n F ebruary 22, 2012, at 5: 00 p.m . , Graves shall file a notice with the Court (i) indica ting whe ther he intends to seek r elief in c onnection with the ninetee n incidents preda ting the e ffe ctive date of the Civil R ights Ac t of 1991 throug h a sepa rate bench pr ocee ding in whic h both liabilit y and
reme dies would be de termined by the Court and, (ii) if so, identify ing w ith particularity

the re lief he would see k in such a proc eedingand explaining, with citation to appr opriate le g al authority , how such re lief would have been a vailable to a T itle VI Iplaintiff prior to the e nactment of the Civil Rights Act of

1991. B. Grave

s Cann ot Seek Relief Under Sec tion 1981 for th e Ninetee n In cidents Predating th e Effe ctive D ate of the Civil Righ ts Act of 1991 The situation is much simpler when it comes to Gr aves’ hostile work environme nt claim under Sec tion 1981. As the Court observed e arlier in this action, Section 101 of the Civil R ights Act of 1991 a

mended “ Section 1981 to rea ch a unive rse of post-contra ct formation conduct that was pre viously

non-ac tionable.” Grave

s v. District of Columbia , 777 F. Supp. 2d 109, 116 6(D.D.C. 2011). I n Rivers v . Roadway Expre ss, Inc. , 511 U.S. 298 (1994), the Supre me Court conclude d that this amendment was a n expansion and not a clar ification of e x isting law. F urther, the Court found that, “be cause it creates liabiliti es that had no le g al exist ence befor e the Ac t was passed, § 101 doe s not apply to pree nactment c onduct.” Id. at 313. Consistent with Landgraf and Tomasello , the Court reje cts Gra ves’ attempt to circumvent this holding by invoking the “continuingviolation” doctrine f or the same rea sons set forth ea rlier. It is bey ond cavil that hostile work environme nt claims like the one pre ssed by Graves in this case w ere not actionable under Sec tion 1981 prior to the Civil Rights Act of 1991. See Patterson v. Mc Lean Credit Union , 491 U.S. 164, 177 (1989) (c oncludingthat the pre -ame ndment Section 1981 did not cover “postformation conduct . . . implicat[i ng ] t he per formanc e of e stablished contra ct obligations and the conditions of continuing employ ment.”). A s such, re troac tive application of Sec tion 101 would attach ne w leg al conse quence s to primary conduct oc curr ing be fore its enactment, upsetting se ttled expectations and runningafoul of the principle that “ individuals should have an opportunity

to know what the law

is and to confor

m their conduc t acc ording ly .” Landgraf , 511 U.S. at 265. Acc ording ly , the Court conclude s that Grave s cannot see k rec overy under Sec tion 1981 for the nine teen incide nts predatingthe ef fec tive date of

the Civil R ights Ac t of 1991. The 4 Court will consider what r evisions, if any , to the parties’ proposed jury instructions are
By cre ating an entire ly

new c ause of

action, Section 101 of the Civil Rights Act of 1991 4 g oes beyond the expansion of monetary liability under Sec tion 102 that animated the cour ts to esche w re troac tive application in Landgraf and Tomasello . Nonethele ss, the Court observes that the re troac tive application of Sec tion 101 of the Civil R ights Ac t of 1991 would also have the eff ect of expanding the sc ope of de fenda nts’ monetary

liability beca use Section 1981, as amende d, is not subject to the statutory cap on c ompensatory

damag es that applies to Title VI I
. See Kim v. Nash Finch Co. , 123 F.3d 1046, 1062 ( 8th Cir. 1997) (“[C] ompensatory and punitive damag es ar e ‘c apped’ under Title VI Ibut not under § 1981.”)
. 7appropr iate at the Pre trial Confere nce sc heduled f or F ebrua ry 27, 2012, at 9:30 a.m., at which point the Court and the par ties will have the be nefit of knowinghow Gra ves intends to proce ed with respec t to his Tit le VI Iclaim. C. Grave

s Must Explain How He Woul

d Seek to Use the Nineteen In cidents as “Background E vidence ” No doubt seeingthe writing on the wall, Gr aves pr offe rs a f allback position, contending that “eve n if this Court were to find that he is preclude d from re cover ing da mag es for the [ni netee n incidents, he] should neverthele ss be per mitted to int roduce evidenc e of that misconduct to establish [t he District’s] discriminatory intent and/or aw are ness of a hostile work environment.” Pl.’s Opp’n at 3. The Court r ecognizes that conduct that is non-ac tionable for purposes of liability

may sometimes be used for

a par ticular purpose in support of ac tionable claims. See, e .g. , Morrison v. Carleton W oolen Mills, Inc. , 108 F.3d 429, 439 ( 1st Cir. 1997) (conc luding that the jur

y could consider

conduct pr edatingthe Civil R ights Ac t of 1991 “to the extent it was leg ally

rele vant to what later

happene d—for e x ample, to help prove the intent behind an a ct committed afte r Nove mber 21, 1991, or the act’ s likely eff ect on someone .”). Although G rave s states in g ener al terms that he intends to use e vidence relating to the ninete en incidents to establish the District’s “intent” and “a war eness,” the Court require s a more particula rized expl anation of howGra ves intends to use this evidence at trial bef ore it rules on the admissibilit y

of such e vidence . Acc ording ly , by no later tha

n F ebruary 22, 2012, at 5: 00 p.m . , Gra ves shall file a

notice with the Court indicating how he would use evidenc e re lating to
eac h of the ninete en incidents pre dating the ef fec tive date of

the Civil R ights Ac t of 1991 in order to support his hosti le work e nvironment claims insofar as they postdate the e ffe ctive date of

8the Civil R ights Ac t of 1991. 5

D. Conclu sion an d Order For the re asons set for

th above, it is, this 17th day of F ebrua

ry , 2012, here by ORDERED that (i) Gr aves c an see k relief under Title VI Ifor the nine teen incide nts predating the e ffe ctive date of the Civil Ri g hts Act of 1991, but he c annot see k compensatory damag es and is not entitled to a jury trial in connec tion with thos e incidents; (ii) Gr aves c annot seek r elief unde r Section 1981 for the ninetee n incidents predating the e ffe ctive date of the Civil Rights Act of

1991; and (iii) Gra

ves must expl ain how he w ould seek to use e vidence relating to the ninetee n incidents as “ba ckg round evide nce” for the jur y ’s consider ation for a

particula r purpose be fore the Court rules on the a dmissibi lity of such e vidence
. I t is F URTHER ORDERED that, by no later tha

n F ebruary 22, 2012, at 5: 00 p.m . , Graves shall file a

notice with the Court (i) indicating whe ther he intends to seek re lief under Title VI Iin connec tion with the nineteen incidents pre dating the ef fec tive date of

the Civil R ights Act of 1991 through a sepa rate bench pr ocee ding in whic h both liabilit y and re medies would be deter mined by the Court and, (ii) if so, identify ing w ith particularity

the re lief he w ould seek in such a pr ocee ding a

nd explaining, with citation to appropriate leg al authority , how such re lief would have be en ava ilable to a Title VI Iplaintiff prior to the e nactment of the Civil R ights Ac t of 1991. In addition, Grave s’ notice must (iii) indicate howhe would use e vidence relating to
eac h of the ninete en incidents pre dating the ef fec tive date of

the Civil R ights Ac t of 1991 as
Even thoug h the Court has conc luded that Gra ves may hy pothetically

pursue r elief f

rom 5 the Court under Title VI I

for c onduct pre dating the ef fec tive date of

the Civil R ights Ac t of 1991, he must still satisfy

the Court that he ca

n appropr iately

introduce e vidence of the ninete en ac ts for the jur y ’s consider ation as “ba ckg round evide nce.” 9“bac kg round evide nce” to be consider ed by the jury for a particula r purpose in support of his hostile work environme nt claims under Title VI Iand Section 1981 insofar as they postdate the eff ective da te of the Civil Rights Act of 1991. SO ORDERED. /s/ COLLE EN KOLLAR-K OTEL LY United States District J udg e

10