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Labor Logic

By: dmc-admin//January 28, 2004//

Labor Logic

By: dmc-admin//January 28, 2004//

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Prosser

John D. Finerty, Jr.

In the first federal circuit court case decided on the issue, the U.S. Court of Appeals for the Seventh Circuit held in Kramer v. Banc of America Securities, LLC, that the Civil Rights Act amendments of 1991 did not extend compensatory and punitive damages to retaliation claims under the Americans with Disabilities Act.

The result of this holding is that only reinstatement, backpay and other equitable remedies are available; also, plaintiffs alleging retaliation under the ADA are not entitled to jury trials. No other federal circuit court had decided the issue.

The Statutory Matrix

The Americans with Disabilities Act is a federal statute that prohibits employment discrimination against qualified disabled individuals. The specific statute that provides remedies to those who prove discrimination is 42 U.S.C. § 12117. That statute references the Civil Rights Act of 1964 as providing the available remedies.

Congress, however, amended the Civil Rights Act in 1991 and added compensatory and punitive damages as possible remedies. The 1991 amendments, however, expanded remedies under the ADA only in specific cases.

The 1991 Civil Rights Act provides for compensatory and punitive damages in disability cases as follows:

In an action brought by a complaining party … against a respondent who engaged in unlawful intentional discrimination … under … Section 102 of the [ADA] or committed a violation of Section 102(b)(5) of the [ADA], against an individual, the complaining party may recover compensatory and punitive damages ….

See 42 U.S.C. § 1981a(a)(2).

Sections 102 and 102(b)(5) of the ADA are codified at Sections 12112 and 12112(b)(5), respectively. Retaliation claims under the ADA, however, are in a difference statutory section, 42 U.S.C. § 12203. There is no reference in the 1991 Civil Rights Act to Section 12203.

Jury Trials

On the issue of a jury trial, the only remedies available to plaintiffs alleging retaliation under the Act are equitable in nature. There is no right to a jury trial, however, where the only remedies available are equitable. See, e.g., Marseilles Hydropower LLC v. Marseilles Land & Water Co., 299 F.3d 643, 648 (7th Cir. 2002). It makes no difference if the plaintiff or the defendant is seeking a jury trial; when only equitable relief is at stake, neither party is entitled to a jury trial.

Parties may, however, consent to trial by jury in some circumstances under federal Rule 39(c). In cases such as ADA retaliation claims, where there is no right to a jury trial, the parties may consent to trial by jury. A district court has discretion, nevertheless, to accept the consent of the parties to a jury trial or decline it and hold a bench trial.

Applying these rules in Kramer v. Banc of America

Colleen Kramer was a team leader at Banc of America Securities for four years. When Banc of America and NationsBank merged in 1998, she got a new boss. Her new boss wrote performance evaluations critical of her performance and interpersonal skills. The employer replaced her as a team leader, but did not change her title or salary. Kramer responded through her attorney and sent written notice to Banc of America that she had multiple sclerosis.

About three months later, Kramer’s boss again wrote a job review critical of her performance and gave Kramer 30 days to improve. In response, Kramer filed a charge with the U.S. Equal Employment Opportunity Commission alleging disability discrimination (She later amended the charge to include retaliation). Kramer obtained a notice of right to sue from the EEOC. Banc of America then terminated Kramer for performance reasons; Kramer filed a federal disability discrimination and retaliation case the next week.

Kramer’s complaint alleged disability discrimination and retaliation under the ADA, as well as state law claim for intentional infliction of emotional distress. Banc of America filed an answer and requested a jury trial. Banc of America then filed a motion for summary judgment on all claims; the court denied the motion with respect to Kramer’s retaliation claim.

Two weeks before trial, however, Banc of America moved to strike the jury demand and request for compensatory and punitive damages. The employer argued, and the district court agreed, that the Civil Rights Act of 1991 did not extend compensatory and punitive damages to ADA retaliation claims because the retaliation statute was not specifically listed under 42 U.S.C. § 1981a. The court of appeals agreed.

The district court also denied Kramer’s jury demand and conducted a bench trial, after which it dismissed her claim. Kramer argued on appeal that Banc of America’s jury demand filed with its answer was an irrevocable consent to a jury trial under Rule 39. The court of appeals held, however, that Banc of America’s motion to strike Kramer’s jury demand was a sufficient withdrawal of its consent to trial by jury.

A Case of First Impression

The holding of Kramer v. Banc of America Securities is the first federal circuit case to decide the issue of whether compensatory and punitive damages are available in ADA retaliation cases. The court in Kramer noted that the 2nd, 8th and 10th circuits have all affirmed jury verdicts that awarded compensatory and punitive damages in ADA retaliation cases. Those cases, however, did not decide the legal question of whether such damages were authorized by statute; the issue in those cases was whether the evidence was sufficient to support a compensatory and punitive damages award.

District courts that decided the issue are split. The Seventh Circ
uit, however, found that the reasoning of a Missouri district court in Brown v. City of Lee’s Summit, 1999 WL 827768 (W.D. Mo. 1999), was persuasive. In that case, the court concluded, “A meticulous tracing of the language of this tangle of interrelated statutes [42 U.S.C §§ 1981a, 12112, 12112(b)(5) and 12203] reveals no basis for plaintiff’s claim of compensatory and punitive damages” in ADA retaliation claims. 1999 WL 827768, at p. 3.

For more information on this case or for assistance in defending discrimination claims in federal court, contact John D. Finerty, Jr. at Michael Best & Friedrich at (414) 225-8269 or on the Internet at [email protected].

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