Omawale v. WBZ
Omawale v. WBZ
Opinion of the Court
On July 18, 1976, Duke Omawale filed a complaint with the United States District Court for the District of Massachusetts naming as defendants seven operators of various radio and television stations in the metropolitan Boston area.
On October 12, 1976, Omawale filed a motion for preliminary injunction in which he sought to enjoin the defendants from filling any available broadcasting positions pending a hearing on the merits of his complaint. This motion was denied by the district court on September 12, 1977.
Following a three-day trial, the magistrate issued a report containing findings of fact and the recommendation that judgment be entered for the defendants. Thereafter a hearing was held on notice before the district court to determine if the report should be approved. Mr. Omawale did not appear at this hearing. The report was approved by the court and judgment was subsequently entered for the defendants. This appeal followed.
Mr. Omawale also contends that he was wrongfully deprived of his right to a jury trial in the district court.
Further, in response to a pretrial order requesting him to specify whether he consented to trial by master or by magistrate, Mr. Omawale indicated his preference for the latter. He now appears to argue that he thought he had no choice but to agree to one of the two proposed alternatives and that the option of trial by jury was willfully and maliciously omitted from the order by the magistrate. However, the magistrate’s pretrial order was entered nearly two years after Omawale initially filed his complaint. The alternatives of trial by magistrate or master were thus offered to Omawale long after the limited time allotted under Rule 38 for serving a jury demand had elapsed. Indeed, Omawale failed to raise the question of a jury trial until the parties and their witnesses appeared before the magistrate for trial. By failing to serve a timely demand he waived any right he may have had for a jury trial, as the magistrate concluded.
We have carefully reviewed the various other contentions raised by Mr. Omawale and found them to be without legal'merit. The judgment of the district court is therefore affirmed.
. The actual names of the corporate defendants are as follows: WBZ Radio & TV4 is Westinghouse Co., Inc., WRKO Radio & TV7 is RKO General, Inc., WEZE is WEZE, Inc., WMEX is Richmond Brothers, Inc., WLYN is Puritan Broadcast Service, Inc., WHDH is WHDH Corporation, and WRYT is WROL, Inc.
Mr. Omawale initially brought this suit as a class action. Noting that he had not moved for certification of the class pursuant to Fed.R.Civ.P. 23, that he had not initiated any discovery, and that he was appearing pro se and “had not demonstrated that sort of legal acumen which ... is vital in class action litigation,” the magistrate assigned to the case recommended that the district court deny class action certification. This recommendation was approved by the district court, and the issue has not been pursued on appeal.
. During this period six of the defendants filed motions for summary judgment. These motions were denied by Judge Tauro on November 3, 1977.
. Omawale sought a writ of mandamus in this court directing the district court to decide a variety of the motions he had filed. Mandamus was denied on July 10, 1978.
. The magistrate also concluded that judgment should be entered for the defendants on the Title VII claim because Mr. Omawale had failed to establish that he had received a right to sue letter from the Equal Employment Opportunity Commission. The Supreme Court has noted that a Title VII plaintiff satisfies the statutory jurisdictional prerequisites to a federal action by 1) filing timely charges of employment discrimination with the EEOC and 2) by receiving and acting upon the Commission’s statutory notice of the right to sue. Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
. In light of our finding that Mr. Omawale waived any right he may have had to a jury trial, infra, it is not necessary for us to determine whether that right attaches in a Title VII proceeding. Five circuits have held that it does not. See Grayson v. The Wickes Corp., 607 F.2d 1194 (7th Cir. 1979), and cases cited therein.
. Rule 38 provides in pertinent part:
“(b) Demand. Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue. Such demand may be indorsed upon a pleading of the party.
“(d) Waiver. The failure of a party to serve a demand as required by this rule and to file it as required by Rule 5(d) constitutes a waiver by him of trial by jury. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties.”
Reference
- Full Case Name
- Duke OMAWALE v. WBZ
- Cited By
- 19 cases
- Status
- Published