Compensatory and Punitive Damages Unavailable in an ADA Retaliation Case
by Gerard Panaro, BOL Guru
In a case of first impression, on which no other federal circuit courts apparently have ruled, the Seventh Circuit held that compensatory and punitive damages are not available as a remedy for a retaliation claim against an employer under the Americans With Disabilities Act. The court further held that because such damages were not available, neither was the plaintiff entitled to a jury trial (Kramer v. Banc of America Securities, LLC, 2004 WL 77917 (C.A.7, 2004)).
The plaintiff headed a team responsible for structuring loans. As a result of a merger, she began reporting to a new supervisor, who was critical of her job performance and replaced her as team leader. The plaintiff's lawyer sent BOA a letter demanding that his client be reinstated as team leader and revealing that his client suffered from Multiple Sclerosis (MS). This was the first notice the bank had of the plaintiff's disease. The plaintiff was issued another memo to improve her performance or be dismissed. She filed a charge with the EEOC and was dismissed a month later. The plaintiff then sued for disability discrimination and retaliation under the ADA. She demanded a jury trial. BOA filed for summary judgment on all the claims, which was granted, except for the retaliation claim. BOA then moved to exclude compensatory and punitive damages and strike the jury demand. The trial court granted the motion, held a six-day "bench trial" (tried before the judge, no jury) and ruled for BOA. The plaintiff then appealed.
On appeal, the plaintiff argued that she was entitled to seek compensatory and punitive damages for her claim of retaliation under the ADA. The Seventh Circuit replied, however, that remedies available for retaliation under the ADA are determined by reference to Title VII. But the relevant section in Title VII does not provide for compensatory or punitive damages. The court noted that the 1991 Civil Rights Act expands the remedies available under Title VII in certain circumstances to provide for compensatory and punitive damages. The plaintiff argued that this section of the CRA of 1991 permitted her to make a claim for retaliation under the ADA and to recover compensatory and punitive damages.
This question is one of "first impression" for the federal circuit courts, the Seventh Circuit said. The court said it found no federal circuit courts that have considered the issue. The district courts that have addressed the question are split, the Seventh Circuit added. Upon examining the law, the Seventh Circuit "conclude[d] that the 1991 Civil Rights Act does not expand the remedies available to a party bringing an ADA retaliation claim against an employer and therefore compensatory and punitive damages are not available." A "close reading of the plain language of" the pertinent section of the CRA of 1991, the court said, "makes it clear that the statute does not contemplate compensatory and punitive damages for a retaliation claim under the ADA." Claims of retaliation under the ADA are not listed in the CRA; therefore, compensatory and punitive damages are not available for such claims. Remedies for ADA retaliation are limited to those provided in Title VII, which do not include compensatory or punitive damages.
Because the plaintiff was not entitled to recover compensatory and punitive damages, the Seventh Circuit went on to rule, she had no statutory or constitutional right to a jury trial, despite the fact that BOA had originally consented to the jury demand and had, in fact, made its own demand for a jury trial. The only remedies a plaintiff bringing a claim of retaliation against an employer under the ADA is entitled to seek are equitable in nature, the court explained (injunction, reinstate the plaintiff, order back pay, or award "any other equitable relief as the court deems appropriate"). There is no right to a jury where the only remedies sought (or available) are equitable.
If, in fact, BOA did originally consent to the plaintiff's demand for a jury trial, it still had a right to withdraw that consent under the facts of this case. If the plaintiff had been entitled to the remedies she demanded in her initial complaint (including compensatory and punitive damages), then she would have been entitled to a jury trial as a matter of right. However, shortly before trial, BOA made a motion to exclude compensatory and punitive damages. The district court granted this motion. After the district court granted the motion, the plaintiff had no right to a jury trial. She was entitled to have her claim of retaliation (for which she was entitled only to equitable remedies) heard by a jury only if BOA consented and the district court agreed. But BOA moved to strike the jury demand. "In light of the district court's decision that there was no statutory right to a jury trial," the court of appeals said, "this motion was proper."
On the other hand, if the plaintiff had had a right to a jury trial (for instance, if she was actually entitled to recover compensatory and punitive damage), BOA could not withdraw a demand for a jury trial. But she had no such right, so BOA could withdraw its consent to a jury trial that is not of right.
The Seventh Circuit summarized its rulings in this case as follows:
Compensatory and punitive damages are not available to a plaintiff bringing a claim of retaliation by an employer under the ADA. Without the right to recover compensatory and punitive damages, Kramer did not have a right to a jury trial and she was entitled to a jury trial only with the consent of BOA and the court. BOA properly withdrew its consent to a jury trial. For these and the foregoing reasons, we AFFIRM.
About the Author:
Gerard P. Panaro is a graduate of the Georgetown University Law Center, admitted in D.C. and Maryland, and holds a Ph.D. in philosophy from Boston College. He is Of Counsel in the Washington, DC offices of Howe & Hutton, Ltd., whose main office is in Chicago, with a third in St. Louis.
Mr. Panaro has focused on employment law for nearly the entire 25 years he has been an attorney. He is the author of a nationally recognized treatise on employment law, Employment Law Manual, a 1500-page volume that was first published in 1990. He is also a regular contributor of articles to numerous HR magazines and publications, and a speaker and trainer. He is a Bankersonline Guru.
First published on BankersOnline.com 3/1/04
First published on 03/01/2004