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Attorney fees awarded in ADA case

By: dmc-admin//November 10, 2008//

Attorney fees awarded in ADA case

By: dmc-admin//November 10, 2008//

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Whether an employee can recover attorney fees in a disability discrimination case, after a jury finds the employer had mixed motives in the decision to terminate her, may depend on which judge is assigned to the case.

An Oct. 23 order by U.S. District Judge Lynn Adelman says that fees can be awarded in that situation.

However, a 1995 opinion by Judge John Reynolds held to the contrary. Frey v. Alldata Corp., 895 F.Supp. 221, 224-225 (E.D.Wis.1995).

The Seventh Circuit has not yet addressed the issue.

Serwatka v. Rockwell

In the recent case, Kathleen A. Serwatka, a former employee of Rockwell Automation Inc. brought suit under the Americans with Disabilities Act (ADA), alleging that she was discharged because Rockwell regarded her as disabled.

A jury found that Rockwell had mixed motives for discharging her — it found that Rockwell fired her because it perceived her as disabled, but also found that Rockwell would have done so even apart from that perception.

In such a case, plaintiffs are not entitled to recover damages. As noted, whether attorney fees can be recovered is a question that has divided lower courts.

The ADA contains two relevant provisions on the issue:

  • 42 U.S.C. 12205 — the generally applicable attorney fees provision — only authorized fees to a “prevailing party.” To be a prevailing party, the plaintiff’s remedy must materially alter the legal relationship between the parties.

    Under this statute, Serwatka would not be a prevailing party, and could not recover fees.

  • However, 42 U.S.C. 12117(a) provides that the powers, remedies and procedures applicable to Title VII of the Civil Rights Act of 1964 shall be available under the ADA, as well.

    Under this statute, Serwatka could recover, because Title VII permits fees in mixed-motive cases.

Judge Adelman held that sec. 12117(a) unambiguously governs, reasoning, “Under sec. 2000e-5 [of the Civil Rights Act], a court may award attorneys’ fees and costs in mixed-motive cases. Thus, sec. 12117(a) authorizes me to grant attorneys’ fees and costs in the present case.” Judge Adelman also found that legislative history supports this conclusion. The House Report contained a provision stating that the remedies available under the ADA shall be parallel to those available to persons discriminated against based on race, color, religion, sex or national origin. H.R. Rep. No. 102-485, pt. III, at 48 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 471. Reasonableness of Fees Nevertheless, Judge Adelman granted significantly less fees than requested, based on the results obtained.

After finding that Serwatka obtained only “minimal relief,” and that Rockwell did not engage in a pattern of discrimination or display any inappropriate animus toward her, Adelman reduced the fees by 80 percent — to about $30,000, instead of the roughly $150,000 requested.

Frey v. Alldata

In the 1995 Frey case, the district court reached the opposite result. The court addressed only sec. 12205, and held the employee was not a prevailing party, because he obtained no damages.

The jury verdict in Frey was very unusual and contradictory — the jury held that disability was not the motivating factor in terminating the employee, but that the employer failed to make reasonable accommodations; the jury then awarded nothing in compensatory damages, but $165 in punitive damages.

The punitive damage award had to be set aside, in light of the absence of compensatory damages, and absent any damages, the court held that the employee was not a prevailing party, and thus, could not recover any attorney fees.

Analysis

As a policy matter, there is a sound basis for distinguishing claims under the ADA from those under the Civil Rights Act of 1964.

Where an employer, in any way, considers an employee’s race or gender in making an employment-related decision, that is unacceptable, and an award of attorney fees is appropriate in a mixed-motive case.

In disability cases, however, the ADA specifically contemplates, and even requires, that employers take employees’ disabilities into consideration. For example, an employer is not required to employ a disabled worker if the employee can’t perform the job with reasonable accommodation.

Consideration of the employee’s disability, and if and how it can be accommodated, is required of employers. This places ADA claims in stark contrast to race discrimination claims.

Thus, it is arguably illogical to permit such an employee to recover attorney fees, based on a jury finding that the employer did what it was expected to, and that its actions did not cause injury to the employee.

The persuasive value of Frey is somewhat limited, inasmuch as the district court assumed that sec. 12205 applied, without addressing sec. 2117(a). Also, if a court were to find as Judge Adelman did -– the statutes are unambiguous -– then that will end the inquiry.

But if a court finds the statutes ambiguous, then policy arguments could support a different result.

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