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January 7, 2003


The opinion of the court was delivered by: John T. Curtin, United States District Judge


Plaintiff Diane Lovejoy-Wilson, a former employee of defendant NOCO Motor Fuel, Inc. ("NOCO"), brought this action pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., and the New York Human Rights Law ("NYHRL"), New York Executive Law § 296, et seq., alleging that NOCO intentionally discriminated against her on the basis of her disability by failing to promote her to the positions of manager and assistant manager, retaliating against her for complaining about her treatment, requiring her to take a medical examination, failing to accommodate her disability, and constructively discharging her (Item 1). By orders dated December 30, 1999 (Item 40) and July 5, 2000 (Item 51), this court granted summary judgment in favor of NOCO on all of the plaintiff's substantive claims, and dismissed the complaint. On August 31, 2001, the Second Circuit affirmed the grant of summary judgment as to plaintiff's claim based on failure to promote to the position of manager, but vacated the grant of summary judgment with respect to plaintiff's claims of discrimination based on failure to promote to the position of assistant manager and retaliation, and remanded the case for further proceedings. Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208 (2d Cir. 2001).

In anticipation of trial, the parties have filed multiple motions seeking several forms of relief. Defendant moves (1) to strike plaintiff's demand for a jury trial on her ADA claim (Item 72), (2) in limine to preclude plaintiff from offering evidence or argument regarding (a) proceedings at the agency level, (b) the Second Circuit's decision, (c) NOCO's alleged failure to engage in the interactive process as required under the ADA (Item 66), and (d) to dismiss plaintiff's claim for punitive damages (Item 83), and (3) for separate trials on the issues of liability and damages (Item 71). Plaintiff moves in limine for an order precluding defendant from offering evidence on several matters, pursuant to Federal Rules of Evidence 401, 403, and 404 (Item 74). Each of these matters is addressed in turn below.


1. Defendant's Motion to Strike Plaintiff's Jury Demand

NOCO argues that because the ADA does not provide for compensatory or punitive damages as remedies for employment retaliation and failure to promote, plaintiff is not entitled to a jury trial on these claims. NOCO concedes that plaintiff is entitled to a jury trial on her NYHRL claims.

a. Retaliation

In support of its motion to strike the demand for a jury trial on plaintiff's retaliation claim, NOCO primarily relies on the decision of the United States District Court for the Western District of Missouri in Brown v. City of Lee's Summit, Mo., 1999 WL 827768 (W.D.Mo. June 1, 1999) (publication page numbers not available). In Brown, the district court engaged in an extensive statutory analysis and concluded that Congress did not intend to permit a plaintiff suing for employment retaliation under section 12203 of the ADA to recover compensatory or punitive damages as remedies. The court reasoned that since entitlement to a jury trial is contingent upon entitlement to compensatory and punitive damages, the plaintiff was not entitled to a jury trial on that claim. See also Boe v. AlliedSignal Inc., 131 F. Supp.2d 1197, 1202-03 (D.Kan. 2001) (relying on Brown to reach same conclusion); contra Ostrach v. Regents of the Univ., 957 F. Supp. 196, 200-01 (E.D.Cal. 1997) (reaching opposite conclusion).

However, as plaintiff points out, more recent decisions from the United States Court of Appeals for the Eighth Circuit (in which the Western District of Missouri is located) have recognized the appropriateness of having a jury consider ADA retaliation claims. See, e.g, Foster v. Time Warner Entertainment Company, L.P., 250 F.3d 1189 (8th Cir. 2001) (affirming jury verdict finding that the plaintiff was terminated in retaliation for opposing unlawful discrimination under the ADA, and awarding lost wages and compensatory and punitive damages); see also Stafne v. Unicare Homes, 266 F.3d 771 (8th Cir. 2001) (affirming jury verdict in favor of employer on claims of disability discrimination and retaliation for filing EEOC complaint). In light of these circuit court decisions, NOCO's reliance on the district court's holding in Brown is unconvincing.

In addition, courts within the Second Circuit have routinely allowed juries to decide ADA retaliation claims. For example, in Muller v. Costello, 187 F.3d 298 (2d Cir. 1999), the Court of Appeals affirmed the jury's findings of liability and compensatory damages in favor of plaintiff on his claim of retaliation in violation of the ADA. The jury had found both intentional disability discrimination and retaliation, and awarded the plaintiff a total of $420,300 in damages. The district court denied the defendant's post-trial motions for judgment as a matter of law or, in the alternative, for a new trial, finding the evidence sufficient to justify the jury's determinations that the plaintiff was disabled under the ADA and that the defendant retaliated against him for exercising his legal rights. See Muller v. Costello, 997 F. Supp. 299, 302 (N.D.N.Y. 1998). The district court granted the defendant's motion to cap the award of compensatory damages at $300,000 pursuant to 42 U.S.C. § 1981a(b)(3). Id. at 302-03. On appeal, and after extensive review of the record below, the Second Circuit ultimately agreed with the defendant's argument that the evidence was insufficient to support the jury's conclusion that the plaintiff suffered from a disability within the meaning of the ADA. Nonetheless, the circuit court affirmed the jury's award of compensatory damages as "justified solely on the retaliation finding." Muller, 187 F.3d at 314. See also Bilancione v. County of Orange, 182 F.3d 898 (2d Cir. 1999) (Table; text in Westlaw at 1999 WL 376836; affirming jury award of $465,692.31 on plaintiff's claims for disability discrimination and retaliation in violation of ADA).

Significantly, the Second Circuit's decision remanding this case for further proceedings contains several references which indicate the circuit court's intent that plaintiff's retaliation claim be tried by a jury. Lovejoy-Wilson, 263 F.3d at 223-24 (a "jury could reasonably find" that NOCO's statements in a January 1994 letter provided basis for retaliation claim; "[a] jury could conclude" that plaintiff was suspended without pay for a week shortly after filing EEOC complaint; time span between filing of EEOC complaint and suspension "is short enough to permit a jury to infer a causal connection" between protected activity and adverse employment action).

Accordingly, NOCO's motion is denied to the extent it seeks an order striking plaintiff's demand for a jury trial on her retaliation claim.

b. Failure to Promote

NOCO also contends that plaintiff is not entitled to a jury trial on her failure to promote claim because that claim is, in essence, a "disparate impact" claim for which compensatory and punitive damages are unavailable as a remedy under the ADA. This contention is also rejected for several reasons.

First, this construction of plaintiff's failure to promote claim ignores the circuit court's extensive analysis of this same claim under the ADA's "reasonable accommodation" provisions, without so much as mentioning the phrase "disparate impact." See Lovejoy-Wilson, 263 F.3d at 215-22. There is no dispute that compensatory and punitive damages, and trial by jury, are available for a claim of failure to accommodate. See 42 U.S.C. § 1981a(a)(2) (compensatory and punitive damages available to remedy failure to accommodate under 42 U.S.C. § 12112(b)(5)). Second, as with plaintiff's retaliation claim, the circuit court's opinion is replete with references indicating the court's presumption that the failure to promote claim will be tried by a jury. See, e.g., Lovejoy-Wilson, 263 F.3d at 217 ("a reasonable jury could find" that plaintiff could perform essential functions of assistant manager job with reasonable accommodation; "a rational jury could find" that plaintiff was able to perform essential functions of assistant manager position at store of her choosing with a reasonable accommodation; "a jury could reasonably find" that NOCO did not reasonably accommodate plaintiff's disability); id. at 218 ("[a] rational jury could find" that a reasonable accommodation was available but not offered; record contains "more than enough evidence to support a jury finding" that defendant flatly refused to afford plaintiff the reasonable accommodation to which she was entitled); id. at 222 ("a jury could reasonably find that possessing a driver's license is not a qualification to be a NOCO assistant manager").

In addition, NOCO concedes the absence of any case law support for its argument that trial by jury is unavailable where the "failure to accommodate" claim arises in the context of assessing the disparate impact of a facially neutral policy (here, the requirement that an assistant manager have a driver's license). On the other hand, plaintiff has cited to several cases in which ADA claims similar to plaintiff's claim in this case were tried by a jury. See, e.g., Gile v. United Airlines, Inc., 213 F.3d 365 (7th Cir. 2000) (failure to accommodate plaintiff's psychological disorder by reassignment to daytime shift); Jacques v. Clean-Up Group, Inc., 96 F.3d 506 (1st Cir. 1996) (failure to accommodate plaintiff's inability to drive to job assignment due to epilepsy); Connolly v. Bidermann Industries U.S.A., Inc., 56 F. Supp.2d 360 (S.D.N.Y. 1999) (failure to accommodate plaintiff's inability to fly due to tinnitus); Geuss v. Pfizer, Inc., 971 F. Supp. 164 (E.D.Pa. 1996) (failure to accommodate request for transfer to work environment less conducive to exacerbation of plaintiff's asthma condition).

Accordingly, considering the clear import of these cases and the Second Circuit's remand order in this case, and in the absence of any authority for holding that compensatory and punitive damages are unavailable to remedy an employer's failure to accommodate an employee's disability based on a facially neutral job requirement, NOCO's motion to strike plaintiff's demand for a jury trial on her failure to promote claim is denied.

2. Defendant's Motions In Limine

a. Evidence and Argument Regarding Agency Proceedings

Defendant moves to exclude evidence at trial of the investigation and findings made by the Equal Employment Opportunity Commission ("EEOC") regarding plaintiff's administrative discrimination charge. In this regard, the Second Circuit has held that the findings of an administrative agency resulting from an investigation made pursuant to authority granted by law are generally admissible under the "public records" exception to the hearsay rule, "unless the sources of information or other circumstances indicate lack of trustworthiness." Fed.R.Evid. 803(8)(C); see Paolitto v. John Brown E. & C., Inc., 151 F.3d 60, 64 (2d Cir. 1999) (citing Chandler v. Roudebush, 425 U.S. 840, 863 n. 39 (1976)). However, as explained in Paolitto, the fact that evidence falls within a hearsay exception does not by itself make it admissible per se. Rather, "[t]he district court generally has discretion to exclude such hearsay on other grounds, such as where the evidence's probative value is substantially outweighed by the danger of unfair prejudice." Paolitto, 151 F.3d at 64 (citing Fed.R.Evid. 403; also citing Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 167-68 (1988)). In exercising its discretion, the trial court should consider "the quality of the [evidence], its potential impact on the jury, and the likelihood that the trial will deteriorate into a protracted and unproductive struggle over how the evidence admitted at trial compared to the evidence considered by the agency." Id. at 65; see also City of New York v. Pullman Inc., 662 F.2d 910, 915 (2d Cir. 1981), cert. denied sub nom. Rockwell International Corporation v. City of New York, 454 U.S. 1164 (1982); Denny v. Hutchinson Sales Corp., 649 F.2d 816, 821-22 (10th Cir. 1981).

In a footnote, the Paolitto court noted that the difference between an agency's "probable cause" determination and a letter of violation "`becomes critical when considering the potential for prejudicial impact on a jury.'" Paolitto, 151 F.3d at 65 n. 3 (quoting Gilchrist v. Jim Slemons Imports, Inc., 803 F.2d 1488, 1500 (9th Cir. 1986)). As explained by the Ninth Circuit in Gilchrist:

In a letter of violation the EEOC concludes that a violation of [Title VII] has occurred, whereas in a probable cause determination the EEOC determines only that there is probable cause to conclude that a violation of Title VII has occurred. A finding of probable cause does not suggest to the jury that the EEOC has already determined that there has been a violation. . . . A letter of violation, however, represents a determination by the EEOC that a violation of the Act has occurred and thus results in a much greater possibility of unfair prejudice.

Gilchrist, 803 F.2d at 1500; accord EEOC v. Manville Sales Corp., 27 F.3d 1089, 1095 (5th Cir. 1994) (following Gilchrist), cert. denied, 513 U.S. 1190 (1995).

In this case, defendant initially sought an order generally excluding any evidence at trial pertaining to the EEOC's administrative investigation and findings. When questioned at oral argument, defense counsel specifically identified as objectionable only the EEOC's May 7, 1996 letter containing the agency's determination "that the evidence obtained during the investigation establishes violations of the ADA." (Item 74, Ex. H).

In order to assist the court and the parties in resolving this important aspect of defendant's motion in limine, plaintiff's counsel was directed to submit for the record a copy of the EEOC file (see Item 81). Upon review of this submission, it is apparent that much of the documentation is duplicative, and that much of the information in the file is not a matter of controversy. The parties shall stipulate as to those documents in the EEOC which shall be admitted in evidence. The remaining part of the record shall be submitted to the court for further review under the admissibility standards set forth above. Counsel shall contact chambers prior to the conference scheduled for April 21, 2003 (see concluding paragraph of this order) to schedule a meeting for this purpose, at a mutually convenient time.

b. Evidence and Argument Regarding the Second Circuit's Decision

NOCO also seeks an order precluding plaintiff from offering evidence or argument at trial regarding the Second Circuit's August 31, 2001 decision in this case. Counsel has represented to the court that plaintiff does not intend to offer any portion of the decision as evidence at trial. To the extent plaintiff intends to rely on the decision in fashioning legal arguments and proposed jury charges, such reliance would be an appropriate application of the "law of the case" doctrine. See DiLaura v. Power Authority of the State of New York, 982 F.2d 73, 76 (2d Cir. 1992) (when court decides upon rule of law, decision should continue to govern same issues in subsequent stages in same case); see also 1B James W. Moore, Jo D. Lucas & Thomas S. Currier, MOORE'S FEDERAL PRACTICE ¶ 0.404[1], at 117 ("Under the doctrine of law of the case, a decision on an issue of law made at one stage of a case becomes a binding precedent to be followed in successive stages of the same litigation.").

Accordingly, defendant's motion in limine is granted to the extent it seeks an order precluding plaintiff from offering evidence or argument at trial ...

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