United States District Court, D. Nebraska
JAY F. CASTEEL, an individual; Plaintiff,
CITY OF CRETE, Defendant.
MEMORANDUM AND ORDER
R. Zwart, United States Magistrate Judge
matter is before the court on Defendant's motion to
strike Plaintiff's demand for compensatory damages as to
his claim for retaliation under the Americans with
Disabilities Act (“ADA”), and his request for a
jury trial. (Filing No. 11). For the reasons
set forth below the motion is granted in part and denied in
Jay Casteel (“Casteel”) alleges the City of Crete
discriminated against him when it fired Casteel from his job
as a journeyman lineman. Specifically, Plaintiff's
Counts I and II - Disability discrimination under the ADA (42
U.S.C. §§ 12101 - 12213) and the Nebraska Fair
Employment Practices Act (“NFEPA”) (Neb. Rev.
Stat. § 48-1101 - 1126);
Counts III through VI - Retaliation under the ADA, 42 U.S.C
§ 2000e-3(a) (Title VII of the Civil Rights Act of 1964
(“Title VII”)), and the NFEPA;
(Filing No. 1 at CM/ECF p. 6). Plaintiff seeks back
pay and lost benefits, front pay and benefits, compensatory
damages, punitive damages, attorney's fees, and pre- and
post-judgment interest. (Filing No. 1 at CM/ECF pp.
5-6). Plaintiff's complaint demands a jury trial.
has moved to strike Plaintiff's demand for compensatory
damages as to his claim for retaliation under the ADA.
Defendant has also moved to strike the jury demand as to all
claims, asserting the City of Crete is a political
subdivision and thus not subject to a jury trial pursuant to
the Nebraska Political Subdivision Tort Claims Act.
Motion to Strike Demand for Compensatory Damages: ADA
argues Plaintiff is statutorily barred from recovering
compensatory damages on his claim of retaliation under the
ADA. Plaintiff's claim for retaliation arises under 42
U.S.C. § 12203 which expressly prohibits retaliation
against an individual who “made a charge, testified,
assisted, or participated in any manner in an investigation,
proceeding, or hearing” based on an alleged ADA
violation. Section 12203 adopts the remedies available under
42 U.S.C. § 12117, which in turn adopts the remedies
under 42 U.S.C. § 2000e-5. Alvarado v. Cajun
Operating Co., 588 F.3d 1261, 1265 (9th Cir. 2009).
Thus, section 2000e-5 contains the enforcement provisions
applicable to the ADA. Id. Brown v. City of Lee's
Summit, no. 98cv0438, 1999 WL 827768, *2-*4 W.D. Mo.
June 1, 1999). Section 2000e-5(g)(1) and (2) provide for a
potential award of equitable remedies including reinstatement
and back-pay. These statutory provisions do not, however,
provide for compensatory damages. 42 U.S.C. § 2000e-5;
see also Alvarado, 588 F.3d at 1265;
Brown, 1999 WL 827768, at *2-*4. While 42 U.S.C.
§ 1981a, as part of the Civil Rights Act of 1991,
expanded the available remedies in employment discrimination
cases, § 1981a(b) permits compensatory damages in suits
alleging violations of the ADA, including actions based
intentional discrimination, but it does not expressly allow
recovery for compensatory damages for claims of retaliation
under § 12203 of the ADA. See Kramer v. Banc of
America Securities, LLC, 355 F.3d 961, 965 (7th Cir.
argues the statutory scheme creates an inconsistent result
for retaliation claims - compensatory damages are available
for retaliation claims brought under Title VII, but not under
the ADA. Plaintiff cites to cases, including some from the
Eighth Circuit, in which juries awarded compensatory damages
for ADA retaliation claims. See Foster v. Time
Warner Entertainment Co., L.P., 250 F.3d 1189 (8th Cir.
2001); Stafne v. Unicare Homes, 266 F.3d 771 (8th
Cir. 2001); Lovejoy-Wilson v. Noco Motor Fuels,
Inc., 242 F.Supp.2d 236, 240-41 (W.D.N.Y. 2003). While
the cases cited did affirm awards of compensatory damages,
they did not - and particularly the Eighth Circuit cases
-address the legal issue of whether compensatory damages are
authorized under the statutory scheme. That is, as to
Plaintiff's cited opinions, the courts were not asked to
decide whether compensatory damages are permitted in ADA
heavily on the detailed statutory analysis and the decision
in Brown v. City of Lee's Summit, 1999 WL
827768, *2-4 (W.D. Mo. 1999), the Seventh Circuit in
Kramer concluded that sections 12203, 2000e-5, and
1981a do not expressly permit a recovery of compensatory
damages in claims alleging ADA retaliation. Kramer,
55 F.3d at 965 (citing Brown, 1999 WL 827768, at
*3). The vast majority of cases addressing the topic have
held likewise. See Rhoads v. F.D.I.C., 94
Fed.Appx. 187 (4th Cir. 2004)(unpublished);
Alvarado, 588 F.3d at 1265; Boe v. Allied
Singnal Inc., 131 F.Supp.2d 1197 (D. Kan. 2001);
Johnson v. Ed Bozarth #1 Park Meadows Chevrolet,
Inc., 297 F.Supp.2d 1286, 1287-91 (D. Colo. 2004);
Sabbrese v. Lowe's Home Centers, Inc., 320
F.Supp.2d 311, 331 (W.D. Pa. 2004); E.E.O.C. v. Faurecia
Exhaust Sys., Inc., 601 F.Supp.2d 971 (N.D. Ohio 2008);
Miles-Hickman v. David Powers Homes, Inc., 613
F.Supp.2d 872, 877-79 (S.D. Tex. 2009); but see Edwards
v. Brookhaven Sci. Assocs., LLC, 390 F.Supp.2d 225, 236
(E.D.N.Y.2005) (interpreting section 1981a to include
compensatory damages for ADA retaliation claims).
court agrees with the well-reasoned opinions of
Kramer, Alvarado and Brown and
finds compensatory damages are not available for claims of
retaliation under the ADA. The statutory language is
unambiguous. As discussed thoroughly in the above referenced
opinions, Sections 2003e-5 and 1981a(b) simply do not contain
any language allowing for compensatory damages for violations
of section 12203. ...