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Casteel v. City of Crete

United States District Court, D. Nebraska

August 23, 2017

JAY F. CASTEEL, an individual; Plaintiff,
v.
CITY OF CRETE, Defendant.

          MEMORANDUM AND ORDER

          Cheryl R. Zwart, United States Magistrate Judge

         This 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.[1] (Filing No. 11). For the reasons set forth below the motion is granted in part and denied in part.

         BACKGROUND

         Plaintiff 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 complaint alleges:

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.

         Defendant 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.

         ANALYSIS

         1. Motion to Strike Demand for Compensatory Damages: ADA Retaliation Claim.

         Defendant 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. 2004).

         Plaintiff 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 retaliation cases.

         Relying 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).

         The 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. ...


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