The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Stephen H. Graves brings this employment discrimination action against Defendant, the District of Columbia, claiming that he was subjected to a racially hostile work environment during the course of his two-decade career with the District's Fire and Emergency Services Department. Graves is pursuing two factually coextensive hostile work environment claims, the first under Title VII of the Civil Rights Act of 1964 and the second under Section 1981 of Title 42 of the United States Code.
Graves claims that he was subjected to a racially hostile work environment throughout his twenty years of employment with the District's Fire and Emergency Services Department, which extended from September 5, 1985 through February 12, 2006. In support of his claims, he has identified a total of forty-nine separate incidents as the component acts comprising the alleged hostile work environment. See Revised Joint Pretrial Stmt., ECF No. , at 2-13. Nineteen of these incidents allegedly occurred prior to November 21, 1991-the effective date of the Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071. This Memorandum Opinion and Order addresses the District's contention that Graves is precluded from recovering under both Title VII and Section 1981 for these nineteen incidents as a matter of law because the Civil Rights Act of 1991 does not apply retroactively to conduct predating its effective date. The matter has been fully briefed and is ripe for adjudication. See Def. District of Columbia's Trial Br. on Pl.'s Right to Recover for Component Acts that Occurred Before the Effective Date of the Civil Rights Act of 1991 ("Def.'s Mem."), ECF No. [52-1]; Pl.'s Opp'n to District of Columbia's Revised Objections and Trial Br. ("Pl.'s Opp'n"), ECF No. ; Reply to Pl.'s Opp'n to District of Columbia's Revised Objects [sic] and Trial Br., ECF No. . In an exercise of its discretion, the Court finds that holding an oral argument would not be of assistance in rendering a decision. See LCVR 7(f).
Upon consideration of the parties' submissions, the relevant authorities, and the record as a whole, the Court concludes as follows:
(i) Graves can seek relief under Title VII for the nineteen incidents predating the effective date of the Civil Rights Act of 1991, but he cannot seek compensatory damages and is not entitled to a jury trial in connection with those incidents;
(ii) Graves cannot seek recovery under Section 1981 for the nineteen incidents predating the effective date of the Civil Rights Act of 1991; and
(iii) Graves must explain how he would use evidence relating to the nineteen incidents as "background evidence" to be considered by the jury before the Court rules on the admissibility of such evidence.
A. Graves Can Seek Limited Relief for the Nineteen IncidentsUnder Title VII
The District contends that Graves is precluded from recovering under Title VII for the nineteen incidents that predate November 21, 1991, the effective date of the Civil Rights Act of 1991, arguing that the Act does not apply retroactively. See Def.'s Mem. at 24.*fn1 Graves counters that he can recover for these nineteen incidents because he is proceeding under a "continuing violation" theory and the alleged hostile work environment continued beyond November 21, 1991. See Pl.'s Opp'n at 2. The Court finds that the correct answer lies somewhere in between the parties' competing positions.
Section 102 of the Civil Rights Act of 1991 conferred upon plaintiffs the right to recover compensatory and punitive damages for certain violations of Title VII and to demand a trial by jury if such damages are sought. In Landgraf v. USI Film Products, 511 U.S. 244 (1994), the Supreme Court held that these rights cannot be applied to conduct predating the effective date of the Civil Rights Act of 1991. As observed by the Court, "[b]efore the enactment of the 1991 Act, Title VII only afforded 'equitable' remedies," and "Section 102 significantly expand[ed] the monetary relief potentially available to plaintiffs." Id. at 253. Reasoning that compensatory damages make plaintiffs whole only "by a mechanism that affects the liabilities of defendants," the Court found that Section 102 represented "the type of legal change that would have an impact on private parties' planning." Id. at 282. In short, Section 102 attached new legal consequences to primary conduct completed before its enactment, raising legitimate concerns about "fair notice, reasonable reliance, and settled expectations." Id. at 270. Ultimately, finding no indicia of congressional intent to apply these rights retroactively, the Supreme Court concluded that plaintiffs may not recover compensatory and punitive damages or demand a trial by jury*fn2 for conduct predating the effective date of the Civil Rights Act of 1991. Id. at 286.
In Tomasello v. Rubin, the United States Court of Appeals for the District of Columbia Circuit addressed a variation on this theme. Like Graves, the plaintiff in Tomasello wanted to pursue a hostile work environment claim with conduct "straddling" the effective date of the Civil Rights Act of 1991. The district court bifurcated the proceedings, with the district court deciding the pre-November 21, 1991 conduct and the jury deciding the post-November 21, 1991 conduct. Id. at 614. On appeal, the plaintiff argued that the pre-November 21, 1991 conduct should have also been tried by the jury as part of a "continuing violation." Id. Finding the argument foreclosed by Landgraf, the Court of Appeals "rejected [the] contention that application of Title VII as amended would not be retroactive because [the plaintiff] alleged a 'continuing violation,' that is, the conduct giving rise to his claims that began before the statute's effective date continued beyond that date." Id. at 619-20.
Together, Landgraf and Tomasello foreclose Graves' argument that he may seek compensatory damages under Title VII for the nineteen incidents predating November 21, 1991. These authorities are binding on the Court and permit no deviation.*fn3 Contrary to what Graves may believe, the Supreme Court's later decision in National Railroad Passenger Corporation v. Morgan, 532 U.S. 101 (2002), is not inconsistent with Landgraf or Tomasello. Morgan addresses a plaintiff's ability to recover for a hostile work environment claim that straddles the statutory time period for filing charges under Title VII, not a hostile work environment claim that straddles the effective date of the Civil Rights Act of 1991. The former scenario simply does not implicate the retroactivity concerns that animated the Supreme Court's decision in Landgraf and the Court of Appeals' decision in Tomasello.
For these reasons, the Court concludes that Graves cannot seek compensatory damages and is not entitled to a jury trial under Title VII for the nineteen incidents predating the effective date of the Civil Rights Act of 1991. However, the Court departs with the District insofar as it intends to suggest that Graves is absolutely foreclosed from pursuing a hostile work environment claim under Title VII for conduct predating the Civil Rights Act of 1991. As the Supreme Court has observed, Section 102 may have expanded the scope of monetary relief available to Title VII plaintiffs, but it did "not make unlawful conduct that was lawful when it occurred." Landgraf, 511 U.S. at 281-82; see also Rivers v. Roadway Express, Inc., 511 U.S. 298, 303 (1994) ("Section 102 altered the liabilities of employers under Title VII by subjecting them to expanded monetary liability, but it did not alter the normative scope of Title VII's prohibition on workplace discrimination."). Even prior to the Civil Rights Act of 1991, the Supreme Court recognized that a plaintiff could establish a violation of Title VII by proving that discrimination created "a hostile or abusive work environment." Meritor Sav. Bank, FSB v. Vison, 477 U.S. 57, 66 (1986). It just so happened that a plaintiff proceeding under such a theory prior to the Civil Rights Act of 1991 was limited to "'equitable' remedies," the determination of which was entrusted to the district court and not a jury. Landgraf, 511 U.S. at 252. Accordingly, the Court concludes that Graves can, at least hypothetically, seek relief under Title VII for the nineteen incidents predating the effective date of the Civil Rights Act of 1991 through a bench proceeding and insofar as the relief he seeks is consistent with the legal landscape in existence before the Civil Rights Act of 1991. He cannot seek compensatory damages and is not entitled to a jury trial in connection with those incidents.
Nonetheless, the Court recognizes that it is far from self-evident whether Graves actually seeks any relief in connection with the nineteen incidents that would have been available to a Title VII plaintiff prior to the enactment of the Civil Rights Act of 1991. See Revised Joint Pretrial Stmt. at 36-38 (outlining the relief sought by Graves). Accordingly, by no later than February 22, 2012, at 5:00 p.m., Graves shall file a notice with the Court (i) indicating whether he intends to seek relief in connection with the nineteen incidents predating the effective date of the Civil Rights Act of 1991 through a separate bench proceeding in which both liability and remedies would be determined by the Court and, (ii) if so, identifying with particularity the relief he would seek in ...