Novack Investment Company, Etc. v. Chester W. Setser

70 L. Ed. 2d 601, 102 S. Ct. 615, 454 U.S. 1064, 27 Fair Empl. Prac. Cas. (BNA) 223, 32 Fed. R. Serv. 2d 1236, 50 U.S.L.W. 3403, 1981 U.S. LEXIS 4596

Opinions

C. A. 8th Cir. Certiorari denied.

Opinion of

Justice Stevens

respecting the denial of the petition for writ of certiorari.

In suggesting that the Court is derelict in its duty to resolve the apparent conflict between the decision of the Court of Appeals in this case and the decision of the Sixth Circuit in Moore v. Sun Oil Co. of Pennsylvania, 636 F. 2d 154 (1980), the dissenting opinion fails to mention the fact that both courts held that the issue of liability should be decided by a jury.

* The question whether the arithmetical calculation of backpay should be made by a judge or by a jury under instructions from the judge is not nearly as significant as the question whether the determination of liability should be made by a judge or a jury. Moreover, since the employer in this case no longer offered employment of the type sought by petitioner, the backpay issue arose in a somewhat unusual context. I do not believe the Court has abused its discretion in declining to review this case.

ln Moore the Court held:

“Since Moore’s claim for legal relief and equitable relief are both based on alleged racial discrimination and since Moore was entitled to a jury trial with respect to his legal claims, he was entitled to have a jury determine liability (i.e. whether he had been a victim of racial discrimination). 9 Wright & Miller, Fed. Prac. & Proc. § 2306. If the jury so determined that here was liability, it would be for the court to determine whether Moore was entitled to back pay.” 636 F. 2d, at 157.