alternative but to deny defendants' motion to strike the jury demand.
1. A jury may decide issues of fact in cases brought under the District of Columbia Human Rights Act.
Neither the Court of Appeals for the District of Columbia Circuit nor the District of Columbia Court of Appeals has decided whether the D.C. Act carries with it a right to a jury trial. But in Howard University v. Best, the D.C. Court of Appeals stated several times that a jury may decide issues raised under the Act. 484 A.2d 958, 980-81, 983-84 (1984). Moreover, the Court of Appeals found the jury's role extremely important: it may determine, "as the representative of the larger community, on a case by case basis, the behavior which the values and norms of the community, as only generally expressed in the D.C. Statute, will not tolerate." Id. at 981.
A district court sitting in diversity is bound to respect the considered dicta as well as the holdings of state court decisions. Nolan v. Transocean Air Lines, 365 U.S. 293, 295-96, 5 L. Ed. 2d 571, 81 S. Ct. 555 (1965) (per curiam); Conesco Industries v. Conforti & Eisele, Inc., 200 U.S. App. D.C. 259, 627 F.2d 312, 318 (D.C. Cir. 1980) (Wilkey, J., dissenting); Manalis Finance Co. v. United States, 611 F.2d 1270, 1272 (9th Cir. 1980). While the Best court did not exhaustively examine whether a jury trial was warranted, it clearly considered the legitimacy and role of a jury under the statute. The explicitness of its repeated expressions forces this Court to conclude that the Best dictum represents a reliable indication of what the District of Columbia court would hold on the issue. As such, this Court must follow the dictum and allow a jury trial. Nolan, 365 U.S. at 295-96, Conesco, 627 F.2d at 319.
2. The Constitution authorizes a jury trial under the Human Rights Act.
The historical separation between law and equity is, for good or ill, not merely of interest to antiquarians. The Seventh Amendment provides an inviolate right to a jury trial "in suits at common law, where the value in Controversy shall exceed twenty dollars." As Mr. Justice Story established in 1830, and as the Supreme Court has held ever since, the jury right is not limited to actions recognized at common law in 1791, when the Constitution was ratified, but extends to all litigation that would then have been classified "at law." Parsons v. Bedford, 3 Pet. 433, 446-47 (1830); see also, e.g., Curtis v. Loether, 415 U.S. 189, 193, 39 L. Ed. 2d 260, 94 S. Ct. 1005 (1974). Only litigants in equity or admiralty may not invoke the Seventh Amendment's guarantee. Parsons, 3 Pet. at 447; Dairy Queen, Inc. v. Wood, 369 U.S. 469, 470-71, 8 L. Ed. 2d 44, 82 S. Ct. 894 (1962).
It is equally clear that the right to trial by jury extends to suits involving questions of both law and equity. Id.; Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 3 L. Ed. 2d 988, 79 S. Ct. 948 (1959); National Life Insurance Co. v. Silverman, 147 U.S. App. D.C. 56, 454 F.2d 899 (D.C. Cir. 1971). This precept applies to discrimination suits no less than to other types of litigation. See, e.g., Johnson v. Railway Express Agency, 421 U.S. 454, 460, 44 L. Ed. 2d 295, 95 S. Ct. 1716 (1975); Curtis v. Loether, 415 U.S. at 195 n. 10; Stebbins v. Nationwide Mutual Insurance Co., 244 U.S. App. D.C. 289, 757 F.2d 364, 371 (D.C. Cir. 1985) (Edwards, J., concurring). Regardless of the character of the overall action, if the issues presented and relief sought are "legal" in nature, a plaintiff in a discrimination suit has the right to request a jury trial. Curtis, 415 U.S. at 196 n. 10; Goodman v. Washington Radio, Inc., Civil Action No. 81-0062, slip op. at 2 (Apr. 26, 1986).
Defendants suggest suits lodged under the District of Columbia Human Rights Act sound in equity only and any monetary recovery under the Act is ancillary to the equitable relief. They urge that the Act is no different from its model, Title VII, which does not carry a jury right.
First, while the D.C. scheme in some ways resembles Title VII, the remedies differ significantly under the two laws. Compensatory damages, for instance, are not available under Title VII. See, Walker v. Ford Motor Co., 684 F.2d 1355, 1363-64 (11th Cir. 1982), and cases cited therein. In contrast, the Human Rights Act explicitly makes compensatory damages a primary remedy for successful litigants. D.C. Code § 1-2553 (a)(1)(D). And damages are quintessential "legal" remedies. E.g., Curtis, 415 U.S. at 197; Quinn v. DiGiulian, 238 U.S. App. D.C. 247, 739 F.2d 637, 645 (D.C. Cir. 1984).
One case decided in the District of Columbia District Court adopted the view urged by defendants. Abbate v. Hyatt Corp., 28 Fair Empl. Prac. Cas. (BNA) 542, 543 (D. D.C. 1982). This case preceded the District of Columbia Court of Appeals decision in Howard University v. Best. By upholding the right to a jury trial under the Human Rights statute, the Best court implicitly determined that money damages contemplated by the statute are not ancillary to equitable relief but a legal remedy. This has always been the majority viewpoint, and it is one that this Court now may not question. See, e.g., Thompson v. International Association of Machinists and Aerospace Workers, 614 F. Supp. 1002, 1010 (D. D.C. 1985); Turgeon v. Howard University, 571 F. Supp. 679, 680; Goodman v. Washington Radio, Inc., 38 Fair. Empl. Prac. Cas. (BNA) 948, 949 (D. D.C. 1982). Consequently, this Court will deny defendants' motion.
PLAINTIFF MAY CLAIM PUNITIVE DAMAGES.
Defendants have moved to strike plaintiff's claim for punitive damages on the grounds that the District of Columbia Human Rights Act does not authorize punitive awards. This Court cannot grant defendants' motion.
Defendants rely on two recent decisions by Judge Joyce Green of this Court for the proposition that the Act does not contemplate punitive damages awards. This reliance is misplaced. Eller v. Houston's Restaurants, Inc., does not hold that punitive damages are unavailable under the D.C. Act but that the damages sought by plaintiff were denominated "compensatory" by the Act. 35 Fair Empl. Prac. Cas. (BNA) 1801, 1802 (D. D.C. 1984). Defendants are equally wrong to paint Thompson v. International Association of Machinists and Aerospace Workers, 614 F. Supp. 1002 (D. D.C. 1985), a thoroughly reasoned rejection of punitive damages under the Act. In Thompson, Judge Green rejected a post-judgment attack by noting that the punitive damage award was not related to the plaintiff's claim under the Human Rights Act.
In contrast to these murky holdings, other judges of this Court have found that the Act authorizes punitive damages. McCormick v. District of Columbia, 554 F. Supp. 640 (D. D.C. 1982); Abbate v. Hyatt Corp., 28 Fair Empl. Prac. Cas. (BNA) 542 (D.D.C. 1982). Moreover, while the District of Columbia Court of Appeals has not yet addressed the question, a local trial court held punitive damages an "important tool" for achieving the Act's objectives and found them authorized by the Act. Zaytoun v. Embassy Row Hotel, Inc., No. 6744-83, slip op. at 61, (D.C. Super. Ct. June 21, 1985), appeal dismissed (Ct. of Apps. Oct. 9, 1986). While this Court is not bound by that determination, it must not disregard the local court's viewpoint unless "'convinced by other persuasive data that the highest court of the [District] would decide otherwise.'" Commissioner of Internal Revenue v. Estate of Bosch, 387 U.S. 456, 465, 18 L. Ed. 2d 886, 87 S. Ct. 1776 (1967) (quoting West v. American Telephone and Telegraph, Inc., 311 U.S. 223, 237, 85 L. Ed. 139, 61 S. Ct. 179 (1940)).
The language of the Human Rights Act clearly supports plaintiff's contention that the Act contemplates award of punitive damages. First, the Act expressly states that a court faced with a private cause of action under the Act "may grant such relief as it deems appropriate, including but not limited to, such relief as is provided in § 1-2553(a)," the section of the Act concerning, inter alia, compensatory damages. D.C. Code § 1-2556(b) (emphasis added). Accordingly, the Act does not limit a court to the remedies set forth under § 1-2553(a). See, Coleman v. American Broadcasting Companies, 38 Empl. Prac. Dec. (CCH) P35,797 at 40,610 (D. D.C. 1985).
Thus, this Court does not believe that the District of Columbia Court of Appeals would disagree with Zaytoun and deny punitive damages under the Human Rights Act. As such, the Court will not strike the punitive damages claim.
THE COURT WILL GRANT PLAINTIFF'S MOTION TO AMEND HER COMPLAINT.
Plaintiff has moved to amend her complaint to add, inter alia, a claim of discrimination based on sexual preference in violation of the District of Columbia Human Rights Act of 1977. Defendants object only to the addition of a new discrimination claim.
Fed. R. Civ. P. 15 (a) states that leave of the Court to amend a pleading "shall be freely given when justice so requires." This liberal standard requires a Court to balance several factors when deciding whether to grant leave to amend:
If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason -- such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc. -- the leave sought should, as the rules require, be 'freely given.'