United States District Court, D. Nebraska
RICK W. HARMS, Plaintiff,
CITY OF NORTH PLATTE, Defendant.
M. BAZIS UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendant's Motion to
Strike. (Filing No. 9.) The motion will be granted.
Complaint alleges that Defendant City of North Platte
(“Defendant”) discriminated against him on the
basis of disability when it fired him from his position as a
patrolman with the North Platte Police Department.
(Filing No. 1.) The Complaint alleges violations of
the Americans with Disabilities Act, as amended, 42 U.S.C.
§§ 12101 et seq., as well as wrongful
termination under Nebraska common law. Plaintiff asserts that
his employment was terminated due to his disability and in
retaliation for seeking workers' compensation benefits
under the Nebraska Workers' Compensation Act and
Temporary Disability Benefits under the Police Officers
Retirement Act. Plaintiff also claims he was denied
reasonable accommodations of light duty and additional leave.
Plaintiff's Complaint requests that he be awarded
compensatory damages for “pain, suffering, humiliation,
inconvenience and emotional distress.” (Filing No.
1.) He also requests a jury trial.
asks that the Court strike, pursuant to Federal Rule of Civil
Procedure 12(f), those portions of Plaintiff's Complaint
which request (1) compensatory damages as to Plaintiff's
ADA retaliation claim and (2) a jury trial as to
Plaintiff's claim for retaliation under the ADA and
Nebraska common law claims. Plaintiff has not responded to
Defendant's motion. Federal Rule of Civil Procedure 12(f)
provides that a court may strike from a pleading “an
insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f).
Courts enjoy liberal discretion in ruling on motions under
Rule 12(f). BJC Health Systems v. Columbia Casualty
Company, 478 F.3d 908, 917 (8th Cir. 2007).
Compensatory Damages for Plaintiff's ADA Retaliation
ADA retaliation claim arises under 42 U.S.C. § 12203.
This statute 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. 42 U.S.C. §
12203. Instead of listing specific remedies
available for retaliation claims, section 12203 adopts the
remedies available under 42 U.S.C. § 12117, which, in
turn, adopts the remedies provided by 42 U.S.C. 2000e-5.
Section 2000e-5(g) authorizes an award of certain equitable
relief, such as back pay and reinstatement.
Civil Rights Act of 1991 expands the remedies available under
42 U.S.C. 2000e-5 by providing for punitive and compensatory
damages for certain claims. Section 1981a(a)(2) states:
In an action brought by a complaining party under the powers,
remedies, and procedures set forth in section 706 or 717 of
the Civil Rights Act of 1964 [42 U.S.C.A. § 2000e-5 or
2000e-16] (as provided in section 107(a) of the Americans
with Disabilities Act of 1990 (42 U.S.C. 12117(a)), and
section 794a(a)(1) of Title 29,
respectively) against a respondent who engaged in unlawful
intentional discrimination (not an employment practice that
is unlawful because of its disparate impact) under
section 791 of Title 29 and the regulations
implementing section 791 of Title 29, or who
violated the requirements of section 791 of Title 29
or the regulations implementing section 791 of Title
29 concerning the provision of a reasonable
accommodation, or section 102 of the Americans with
Disabilities Act of 1990 (42 U.S.C. 12112), or committed a
violation of section 102(b)(5) of the Act, against an
individual, the complaining party may recover compensatory
and punitive damages as allowed in subsection (b) of this
section, in addition to any relief authorized by section
706(g) of the Civil Rights Act of 1964, from the respondent.
42 U.S.C. § 1981a(b). This statute does not
expressly allow recovery for compensatory damages for
retaliation claims under § 12203.
there is a split of authority on this issue, many courts that
have examined this remedial scheme have concluded that
compensatory damages are not available for ADA retaliation
claims. See Casteel v. City of Crete, No.
4:16CV3166, 2017 WL 3635184, *2 (D. Neb. Aug. 23, 2017)
(“Sections 2003e-5 and 1981a(b) simply do not contain
any language allowing for compensatory damages for violations
of section 12203”); Kramer v. Banc of America
Securities, LLC, 355 F.3d 961, 965 (7th Cir. 2004)
(“We thus conclude 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”);
Alvarado v. Cajun Operating Company, 588 F.3d 1261,
1269-70 (9th Cir. 2009) (“[W]e hold . . . that the
plain and unambiguous provisions of 42 U.S.C. § 1981a
limit the availability of compensatory and punitive damages
to those specific ADA claims listed. ADA retaliation is not
on the list”).
Court finds the reasoning set forth in these cases
persuasive. There is no language in this statutory scheme
suggesting that compensatory damages are available for ADA
retaliation claims. See National R.R. Passenger
Corp v. National Ass'n of R.R. Passengers, 414 U.S.
453, 458 (1974) (“A frequently stated principle of
statutory construction is that when legislation expressly
provides a particular remedy or remedies, courts should not
expand the coverage of the statute to subsume other
remedies”). Therefore, the Court concludes that
Plaintiff may not recover compensatory damages on his ADA
retaliation claim. Plaintiff's request for compensatory
damages as to his ADA retaliation claim will be stricken from