Gunn v. Penske Automotive Group, Inc.
ORDER: As per the attched ruling, the defendant's Motion to Strike Jury Demand (ECF No. 144 ) is hereby DENIED. It is so ordered. Signed by Judge Alvin W. Thompson on 9/8/2020. (Brambila, N.)
Case 3:17-cv-00757-AWT Document 160 Filed 09/08/20 Page 1 of 9
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DONALD J. GUNN,
PENSKE AUTOMOTIVE GROUP, INC.,
Civil No. 3:17-cv-00757-AWT
RULING ON MOTION TO STRIKE JURY DEMAND
Defendant Penske Automotive Group, Inc. (“PAG”) has moved
pursuant to Federal Rule of Civil Procedure 39(a)(2) to strike the
demand for a jury trial by plaintiff Donald J. Gunn (“Gunn”). The
remaining claim in this case is one for discharge in violation of
Conn. Gen. Stat. § 31-51q. For the reasons set forth below, PAG’s
motion to strike the jury demand is being denied.
Under Federal Rule of Civil Procedure 39(a), where a proper
jury demand has been made, “trial on all issues so demanded must
be by jury unless . . . the court, on motion or on its own, finds
that on some or all of those issues there is no federal right to
a jury trial.” Fed. R. Civ. P. 39(a)(2).
The Seventh Amendment provides that “[i]n [s]uits at common
law, where the value in controversy shall exceed twenty dollars,
the right of trial by jury shall be preserved.” “The right to a
jury trial includes more than the common-law forms of action
Case 3:17-cv-00757-AWT Document 160 Filed 09/08/20 Page 2 of 9
recognized in 1791; the phrase ‘[s]uits at common law’ refers to
determined, in contradistinction to those where equitable rights
administered.’” Chauffeurs, Teamsters & Helpers, Local No. 391 v.
Terry, 494 U.S. 558, 564 (1990) (quoting Parsons v. Bedford,
Breedlove & Robeson, 28 U.S. 433, 447 (1830)).
To determine whether a particular action will resolve
legal rights, we examine both the nature of the issues
involved and the remedy sought. ‘First, we compare the
statutory action to [eighteenth]-century actions brought
in the courts of England prior to the merger of the
courts of law and equity. Second, we examine the remedy
sought and determine whether it is legal or equitable in
nature. The second inquiry is the more important in our
Id. at 565 (quoting Granfinanciera, S.A. v. Nordberg, 492 U.S. 33,
Section 31-51q provides:
instrumentality or political subdivision thereof, who
subjects any employee to discipline or discharge on
account of the exercise by such employee of rights
guaranteed by the first amendment to the United States
Constitution or section 3, 4 or 14 of article first of
the Constitution of the state, provided such activity
does not substantially or materially interfere with the
employee's bona fide job performance or the working
relationship between the employee and the employer,
shall be liable to such employee for damages caused by
such discipline or discharge, including punitive
damages, and for reasonable attorney's fees as part of
the costs of any such action for damages. If the court
determines that such action for damages was brought
without substantial justification, the court may award
costs and reasonable attorney's fees to the employer.
Case 3:17-cv-00757-AWT Document 160 Filed 09/08/20 Page 3 of 9
As the first step of the Seventh Amendment analysis, the court
actions brought in the courts of England prior to the merger of
the courts of law and equity.’” Granfinanciera, S.A., 492 U.S. at
42 (quoting Tull v. United States, 481 U.S. 412, 417 (1987)).
Although ‘the thrust of the [Seventh] Amendment was to
preserve the right to jury trial as it existed in 1791,’
the Seventh Amendment also applies to actions brought to
enforce statutory rights that are analogous to commonlaw causes of action ordinarily decided in English law
courts in the late [eighteenth-]century, as opposed to
those customarily heard by courts of equity or
Id. at 41 (quoting Curtis v. Loether, 415 U.S. 189, 193 (1974)).
In Ford v. Blue Cross and Blue Shield of Connecticut, Inc.,
216 Conn. 40, 51 (1990), the Connecticut Supreme Court addressed
the question of whether an action for violation of Conn. Gen. Stat.
§ 31-290a “has [its] roots in the common law.” The court concluded
that it does. It stated:
A violation of § 31-290a, a statute obviously designed
to protect claimants who file for benefits under one of
this century’s most ameliorative statutory programs, is
in essence a statutorily created tort deriving from the
action for wrongful discharge set forth in Sheets [v.
Teddy’s Frosted Foods, Inc., 179 Conn. 471 (1980)]. It
should be recalled that our modern law of torts has its
origins in the common law actions of trespass and
trespass on the case. We conclude, therefore, that
because the classical theory upon which recovery is
based in actions brought pursuant to § 31-290a was
redressable at common law, the plaintiff’s action was
properly tried to a jury.
Id. at 52-53.
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In Burrell v. Yale University, No. CV000159421S, 2003 WL
1477067 (Conn. Super. Ct. Mar 5, 2003), the court relied on the
reasoning in Ford in concluding that there was a right to a jury
trial under Conn. Gen. Stat. § 31-51q. The court noted that in
Ford, the Connecticut Supreme Court “observed that § 31-290a is
essentially a codification of the tort of wrongful discharge, which
had its origins in the common law and was therefore triable to the
jury.” Id. at *1. The court recognized that the test was “whether
the statutory action is ‘substantially similar to cases for which
the right to a jury trial existed at common law[.]’” Id. at *2
(quoting Assoc. Inv. Co. Ltd. P’ship v. Williams Assoc. IV, 230
Connecticut Constitution). The court concluded that “[u]nder that
test . . . § 31-51q qualifies for a jury trial.” Id.
Robinson v. Southern New England Telephone Company, No. 59448,
1994 WL 400942, *1 (Conn. Super. Ct. July 25. 1994), the court
observed: “Arguably, then, the theory upon which recovery is based
in actions brought under Sec. 31-51q has its ancestral roots in
the common law action of trespass on the case.” (citing Ford, 216
Conn. at 52-53).
This court similarly concludes that an action under § 31-51q
has its origins in the common law. In Ford, the Connecticut Supreme
Court found that the tort of wrongful discharge has its origins in
the common law and that Conn. Gen. Stat. § 31-290a is, in essence,
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a statutorily created tort deriving from the action for wrongful
discharge set forth in Sheets v. Teddy’s Frosted Foods, Inc., 179
Conn. 471 (1980). This court is persuaded that Conn. Gen. Stat. §
31-51q is, in essence, no less a statutorily created tort derived
from the action for wrongful discharge set forth in Sheets.
At the second step of the Seventh Amendment analysis, the
court must “‘examine the remedy sought and determine whether it is
legal or equitable in nature.’” Granfinanciera, S.A., 492 U.S. at
42 (quoting Tull, 481 U.S. at 417-18). Citing to Broadnax v. City
of New Haven, 415 F.3d 265 (2d Cir. 2005), a case involving a Title
VII claim for lost wages, the defendant asserts that “the nature
of the relief sought by Plaintiff – lost pay – is equitable in
nature and therefore he is not entitled to a jury trial.” Mot. to
Strike Jury Demand at 3, ECF No. 144-1. The court disagrees.
In Chauffeurs, Teamsters and Helpers, Local No. 391, 494 U.S.
at 570-72, the Court stated:
In this case, the only remedy sought is a request for
compensatory damages representing backpay and benefits.
Generally, an action for money damages was the
traditional form of relief offered in the courts of law.
This Court has not, however, held that any award of
monetary relief must necessarily be ‘legal’ relief.
Nonetheless, because we conclude that the remedy
respondents seek has none of the attributes that must be
present before we will find an exception to the general
rule and characterize damages as equitable, we find that
the remedy sought by respondents is legal.
First, we have characterized damages as equitable where
they are restitutionary, such as in actions for
disgorgement of improper profits[.] The backpay sought
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but wages and
McLean had the
is not money wrongfully held by the Union,
benefits they would have received from
Union processed the employees’ grievances
relief is not restitutionary.
Second, a monetary award incidental to or intertwined
with injunctive relief may be equitable. . . . Because
respondents seek only money damages, this characteristic
is clearly absent from the case.
The Union argues that the backpay relief sought here
must nonetheless be considered equitable because this
Court has labeled backpay awarded under Title VII, of
the Civil Rights Act of 1964, as equitable. . . .
The court has never held that a plaintiff seeking backpay
under Title VII has a right to a jury trial. Assuming,
without deciding, that such a Title VII plaintiff has no
right to a jury trial, the Union’s argument does not
persuade us that respondents are not entitled to a jury
trial here. Congress specifically characterized backpay
under Title VII as a form of equitable relief. . . .
Furthermore, the Court has noted that backpay sought
from an employer under Title VII would generally be
restitutionary in nature . . . in contrast to the damages
sought here from the Union.
Id. (quotation marks and citations omitted). The forgoing analysis
makes it clear that PAG’s reliance on Broadnax is misplaced.
Also, the court agrees with the plaintiff that “[a] review of
the text of § 31-51q itself demonstrates that the relief provided
is legal. . . . See Chauffeurs, Teamsters and Helpers, Local No.
391[, 494 U.S. at 570-71] (wages and benefits plaintiff would have
received had the defendant processed grievances properly were
legal remedies, not ‘restitutionary’ equitable remedies).” Opp’n
to Mot. to Strike Jury Demand (“Opp’n) at 1-2, ECF No. 152. The
remedy the plaintiff seeks under § 31-51q has neither of the
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attributes (described in Chauffeurs, Teamsters and Helpers, Local
No. 391) that must be present before the Supreme Court will find
an exception to the general rule and characterize damages as
equitable. Nor is this a Title VII case.
Accordingly, the court concludes that the remedy sought under
§ 31-51q is legal in nature.
“undisputed that a § 31-290a action involves a legal remedy,” and
the remedies provided for under § 31-51q are substantially similar
to those provided for under § 31-290a. See § 31-290a(b)(1) (“Any
employee who is so discharged or discriminated against may . . .
[b]ring a civil action . . . for the reinstatement of his previous
job, payment of back wages and reestablishment of employee benefits
to which he would have otherwise been entitled. . . . The court
may also award punitive damages. Any employee who prevails in such
a civil action shall be awarded reasonable attorney’s fees and
costs”). The fact that it was undisputed in Ford that a § 31-290a
involves a legal remedy is consistent with this court’s conclusion
that the remedy under § 31-51q is legal in nature.
Connecticut Supreme Court in Skinner v. Angliker, 211 Conn. 370
(1980), suggests without so holding that the remedy afforded under
§ 31-51q is legal rather than equitable[.]” Opp’n at 2. In Skinner,
the issue was whether a plaintiff had a right to a jury trial in
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an action brought against the state pursuant to § 31-51q. The court
concluded that a plaintiff does not have a right to a jury trial
in such an action. However, the key fact in the court’s analysis
was that “[b]ecause the state was immune from suit in 1818[ 1] for
this type of action, the plaintiff now has no right to a jury trial
brought against the state under § 31-51q.” Id. at 378. The court
Our analysis draws support from cases involving claims
for a jury trial under the seventh amendment to the
federal constitution in suits brought against the United
States. Applying a historical test similar to the one
set forth above, the United States Supreme Court has
held that the seventh amendment does not apply to suits
against the government, because these are not suits at
common law within its true meaning.
Id. at 378-79 (internal quotations and citations omitted). Then
the court observed:
The plaintiff argues, however, that in light of the
language of § 31-51q and its legislative history, it is
clear that the legislature intended to provide a legal,
and not equitable, remedy and, therefore, it implicitly
consented to a trial by jury. In addition, the plaintiff
claims that because the legislature has specifically
denied the right to a trial by jury in other statutes
and it failed to do so in § 31-51q, we should assume
that it intended to consent to a jury trial in § 31-51q
actions. While the plaintiff’s arguments may be valid in
a suit against a private employer, it is important to
remember that the instant action is one against the
The state constitutional provision preserving the right to jury
trial was adopted in 1818.
Case 3:17-cv-00757-AWT Document 160 Filed 09/08/20 Page 9 of 9
Id. at 380. Thus, while the Connecticut Supreme Court did not
reach the issue of whether there is a right to a jury trial in a
consistent with this court’s conclusion that the remedy under §
31-51q is legal in nature.
For the reasons addressed above, PAG’s Motion to Strike
Jury Demand (ECF No. 64) is DENIED.
It is so ordered.
Dated this 8th day of September 2020, at Hartford,
Alvin W. Thompson
United States District Judge
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