and discrimination damages. See Hudson v. Reno, 130 F.3d 1193 (6th Cir 1997). In Hudson, the jury awarded the plaintiff a total of $ 1.5 million: (1) $ 250,000 in compensatory damages for sex discrimination; (2) $ 500,000 in compensatory damages for retaliation; and (3) $ 750,000 in compensatory damages for constructive discharge. Id. at 1199. The district court capped damages at $ 300,000. The plaintiff argued that the $ 300,000 cap only applied per claim. On appeal, the Sixth Circuit affirmed by reasoning that the face of the statute was conclusive and there was no reason to stray beyond the statute's ordinary meaning. While Hudson did not involve the ADA, sex discrimination and retaliation are enforced through 42 U.S.C. § 1981a, just like the ADA.
Other courts which have addressed this issue have reached a similar conclusion as the Hudson case. In Galliher v. Rubin, 969 F. Supp. 1329 (S.D. Ga. 1997), the court held that § 1981a applied to damages on a per lawsuit basis, not a per claim basis. The court stated "that a plaintiff who brings two separate Title VII actions, which are consolidated for purposes of trial, is entitled to recover only a single award of compensatory damages under § 1981a. If [plaintiff] prevails on both her retaliation claim and wrongful discharge claim, thus, she may recover a maximum of $ 300,000 in compensatory damages." Id. at 1331. Another similarly decided case occurred in Martini v. Federal Nat'l Mortgage Assoc., 977 F. Supp. 464 (D.D.C. 1997), where plaintiff sued her employer for sex discrimination and retaliation in violation of Title VII and the District of Columbia Human Rights Act, which resulted in a total jury verdict of $ 6,948,307.40. After a motion to reduce the verdict, the court held that § 1981a "clearly requires that the Court reduce Plaintiff's Title VII recovery for compensatory and punitive damages for both her discrimination and retaliation claims from $ 4,893,807.40 to $ 300,000." See id. at 470; see also Talbott v. Empress River Casino, 1997 U.S. Dist. LEXIS 11473, No. 95- C-5317, 1997 WL 458437 (N.D. Ill. Aug. 4, 1997).
Thus, given the plain meaning of § 1981a and the case law cited above, the Court finds that Plaintiff's compensatory damage award must be capped at $ 300,000.
(d) Defendant's Motion to Vacate or Reduce the Verdict as Excessive
Defendant also moves to vacate or reduce the jury verdict as excessive. In the Second Circuit, the standard for reducing or overturning a jury verdict is that a "jury's damage award may not be set aside unless 'the award is so high as to shock the judicial conscience and constitute a denial of justice.'" O'Wade v. Orange County Sheriff's Office, 844 F.2d 951 (2d Cir. 1988) (quoting O'Neill v. Krzeminski, 839 F.2d 9, 13 (2d Cir. 1988); see also McIntosh v. Irving Trust Co., 887 F. Supp. 662 (S.D.N.Y. 1995); Luciano v. Olsten Corp., 912 F. Supp. 663 (E.D.N.Y. 1996).
In applying this test, the Court must look to the evidence and other similar type cases to determine whether the award is excessive. Defendant cites to a variety of non-ADA cases, which as a whole, involve instances of isolated, generally short-term periods of either discrimination or injury. Here, Plaintiff submitted evidence of discrimination that had taken place over a period of years during which time he was forced to endure mental suffering, embarrassment, economic hardship, actual termination and physical injury. In view of this evidence, the Court finds that the jury award of $ 300,000 is not excessive and does not shock the conscience as a matter of law.
(d) Subject Matter Jurisdiction
(1) The ADA and State Prison Employees
Defendant argues that the ADA does not apply to state prisons and cites to two circuit opinions as authority. See Amos v. Maryland Dep't of Pub. Safety & Correctional Servs., 126 F.3d 589 (4th Cir. 1997); White v. Colorado, 82 F.3d 364, 367 (10th Cir. 1996). However, neither of these cases addressed whether the ADA applied to employees of state prisons, but only addressed whether state prisoners were covered by the ADA. See Yeskey v. Commissioner of Pennsylvania Dep't of Corrections, 118 F.3d 168, 174 (3d Cir. 1997); Onishea v. Hopper, 126 F.3d 1323 (11th Cir. 1997). While the Court acknowledges that a split exists among some of the Circuits as to whether prisoners are covered by the ADA, Defendant fails to address or even acknowledge that there is a distinction between prison employees and prison inmates. There is no reason to suggest that these groups should be treated the same. Moreover, there is no reason to believe that Congress did not intend to cover state prison employees under the protections of the ADA. Rather, it would appear that Congress intended to include state prison employees when it failed to indicate otherwise after expressly abrogating the States' Eleventh Amendment immunity. Therefore, the Court finds that state prison correctional officers are covered under the protections of the ADA.
(2) The ADA and Sovereign Immunity
It is undisputed that Congress specifically intended to abrogate the States' Eleventh Amendment immunity when it enacted the ADA. See 42 U.S.C. § 12202. However, Defendant argues that Congress did not validly abrogate the States' sovereign immunity under the Eleventh Amendment because it was not enacted pursuant to the Fourteenth Amendment. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S. Ct. 1114, 1124, 134 L. Ed. 2d 252 (1996). Defendant states that "the ADA was not and could not have been promulgated under Congress' Fourteenth Amendment powers." Defendant, however, fails to elaborate upon this statement.
While the validity of the ADA's abrogation of Eleventh Amendment immunity has not been addressed by the Second Circuit, several other federal courts have done so, with the clear majority holding that the ADA was enacted pursuant to the Fourteenth Amendment. In Crawford v. Indiana Dep't of Corrections, 115 F.3d 481 (7th Cir. 1997), the Seventh Circuit analyzed the issue and reasoned:
Like the other antidiscrimination statutes, the Americans with Disabilities Act is an exercise of Congress's power under section 5 of the Fourteenth Amendment (as well as under the commerce clause, which is not excepted from the Eleventh Amendment) to enact legislation designed to enforce and bolster the substantive provisions of the amendment, in this case the equal protection clause. . . . Although the state argues that the ADA is outside the scope of section 5, that argument is refuted by our earlier discussion of Congress's concern that disabled persons are victims of discrimination. Invidious discrimination by governmental agencies, such as Indiana's prison system, violates the equal protection clause even if the discrimination is not racial, though racial discrimination was the original focus of the clause. In creating a remedy against such discrimination, Congress was acting well within its powers under section 5 . . . .
Id. at 486. Other courts have reached similar conclusions. See Martin v. State of Kansas, 978 F. Supp. 992, 994 (D.Kan. 1997) (summarizing the majority position). The Court is aware of only one opinion since Seminole Tribe that has reached the opposite conclusion. See Nihiser v. Ohio Environmental Protection Agency, 979 F. Supp. 1168 (S.D. Ohio 1997); see also Pierce v. King, 918 F. Supp. 932, 940 (E.D.N.C. 1996) (dicta, decided before Seminole Tribe). Thus, because the majority of Courts addressing this issue have held that the ADA was enacted through the authority of the Fourteenth Amendment, and because the ADA seeks as its purpose to eliminate discrimination, which has its roots in the Fourteenth Amendment as well, this Court holds that the ADA was validly enacted pursuant to section 5 of the Fourteenth Amendment.
III. PLAINTIFF'S MOTIONS
(a) Injunctive Relief
Plaintiff moves for injunctive relief asking the Court to order reinstatement and direct New York State to provide him an opportunity to take the DOCS Sergeant's examination, which will not be given again for another six years. Plaintiff specifically requests that he be reinstated to Midstate Correctional Facility in a smoke free post.
The ADA provides that the Title VII remedies apply to any person alleging discrimination on the basis of a disability. See 42 U.S.C. § 12117(a). Once a plaintiff proves that an unlawful motive played some part in the employment decision, the plaintiff is entitled to relief including compensatory damages, declaratory judgment and injunctive relief. See Doane v. City of Omaha, 115 F.3d 624 (8th Cir. 1997). "It is the duty of the district court, after a finding of discrimination, to place the injured party in the position he or she would have been absent the discriminatory actions." Nord v. United Steel Corp., 758 F.2d 1462 (11th Cir. 1985) (citing Albemarle Paper Co. v. Moody, 422 U.S. 405, 45 L. Ed. 2d 280, 95 S. Ct. 2362 (1975)). If appropriate, reinstatement is the preferred remedy rather than front pay. See Selgas v. American Airlines, Inc., 104 F.3d 9, 12 (1st Cir. 1997). Plaintiff specifically has elected reinstatement over front pay.
After almost a two week trial, the jury found that Defendant intentionally discriminated and retaliated against Plaintiff. When discrimination is found, the purpose of the ADA and the derivative Title VII statutes is to make the Plaintiff as whole as possible. In this case, the Court finds reinstatement to be appropriate. However, simply reinstating Plaintiff to his former position will not be enough to provide Plaintiff with the reasonable accommodation to which he is entitled. The Court therefore orders that Plaintiff be reinstated as a correctional officer at the Midstate Correctional Facility and that he be assigned in such position and to such duties that are consistent with and in compliance with the New York State Clean Indoor Act.
As stated, Plaintiff has also requested the Court to order the Defendant New York State to provide him an opportunity to take the DOCS sergeant's examination. Courts have on occasion intervened to enjoin "testing," however, this generally has only occurred where the test itself was directly at issue, such as a racially discriminatory test or a test not appropriately deemed to be job related. See Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972); Bouman v. Block, 940 F.2d 1211 (9th Cir. 1991), cert. denied 502 U.S. 1005, 116 L. Ed. 2d 658, 112 S. Ct. 640 (1991). The Court can find no authority to suggest an injunction directing the State to administer a special examination would be appropriate absent a finding that the examination itself was substantively invalid. The Court therefore denies this request.
(b) Back Pay
Plaintiff requests $ 47,981.30 in back pay and $ 8,084.00 in lost vacation time, personal leave, overtime, and medical insurance. Plaintiff calculates these losses back through 1995. Plaintiff does subtract prior amounts received from the state, but includes $ 13,302.80 in Workers' Compensation benefits that he expects to receive in the future, which he asserts he will reimburse. Defendant's only response to this specific motion is in an attorney affidavit in opposition to Plaintiff's motion for injunctive relief which states that Plaintiff's motion should be denied because he "failed to adduce any evidence at trial of the amount of back pay he now requests and at no time was the chart referred to at this time ever presented during the trial." (Def. Opp. Aff. at 2). Defendant objects in a similar manner to Plaintiff's request for lost time and medical costs. However, Defendant's pretrial memorandum of law states: "If the Plaintiff prevails, he would be entitled to back pay. Because back pay is in the nature of an equitable remedy, the grant of such relief should be reserved to Judge Scullin rather than the jury." (Def. Pretrial Br. at 18). Thus, Defendant was fully aware that this issue was reserved to the Court but nevertheless failed to enter any appropriate arguments or objections. Thus, the Court finds Plaintiff's motion for back pay to be reasonable and appropriate. However, a deduction of $ 13,380 is appropriate to prevent the double recovery of Worker's Compensation benefits.
Having considered the parties' submissions, the record, and the applicable law, it is hereby
ORDERED that Defendant's motions for judgment as a matter of law, for a new trial, to vacate or reduce the verdict as excessive, and to dismiss for lack of subject matter jurisdiction are DENIED; it is further
ORDERED that Defendant's motion to cap the jury verdict at $ 300,000 is GRANTED; it is further
ORDERED that Plaintiff's motion for an injunction directing reinstatement is GRANTED; it is further
ORDERED that Plaintiff's motion for an injunction directing DOCS provide him an opportunity to take the DOCS Sergeant's examination is DENIED; and it is further
ORDERED that Plaintiff's motion for back pay and lost benefits is GRANTED in the modified amount of $ 42,762.50.
IT IS SO ORDERED.
Date: March 9, 1998
Syracuse, New York
Frederick J. Scullin, Jr.
United States District Judge