United States District Court, E.D. New York
June 21, 2005.
PATRICK S. BRADY, Plaintiff,
WAL-MART STORES, INC., YEM HUNG CHIN, and JAMES BOWEN, Defendants.
The opinion of the court was delivered by: JAMES ORENSTEIN, Magistrate Judge
MEMORANDUM AND ORDER
For the reasons set forth below, based upon the jury's
verdicts, I direct the clerk to enter judgment in favor of
plaintiff Patrick S. Brady ("Brady") jointly and severally
against defendants Wal-Mart Stores, Inc. ("Wal-Mart") and Yem
Hung Chin ("Chin") in the amount of $2,500,000 and against
defendant Wal-Mart alone in the additional amount of $300,002.
The portion of the judgment against Wal-Mart alone reflects a
total award of punitive damages of $300,000 on all of Brady's
proven claims against the company based on the statutory cap of
such damages in a single action, as well as nominal damages of
one dollar on each of two technical violations of the Americans
with Disabilities Act ("ADA"), 29 U.S.C. § 12101, et seq.,
alleged in Brady's complaint. The judgment does not include any
award of back pay or front pay. Finally, based on the jury's
verdicts, I direct the clerk to dismiss with prejudice Brady's
claims against defendant James Bowen ("Bowen").
In his amended complaint, docket entry ("DE") 33, Brady
asserted several claims against Wal-Mart, Chin, and Bowen based
on his experiences in applying for and then having a job as a
part-time sales associate at the Wal-Mart store in Centereach,
New York, in the summer of 2002. Briefly stated, Brady, who suffers from cerebral palsy, claimed
that Wal-Mart violated the ADA during the job application process
by making certain prohibited inquiries before extending a
conditional offer of employment, and then, after he was hired,
further violated the ADA, as well as the New York Human Rights
Law ("NYHRL"), N.Y Exec. L. § 296, by subjecting him to adverse
employment actions including subjecting him to unwanted
transfers, a hostile work environment, and constructive discharge
on the basis of a disability and by failing to provide a
reasonable accommodation for his disability. Brady also accused
two Wal-Mart employees pharmacist Chin and store manager Bowen
of having participated in the conduct giving rise to his claim
of disability discrimination. Brady further claimed that the
defendants' actions intentionally inflicted emotional distress
upon him, and also complained of Wal-Mart's alleged negligence in
hiring, supervising, and retaining employees. DE 33. By Order
dated February 16, 2005, the Honorable Leonard D. Wexler, United
States District Judge, granted in part and denied in part the
defendants' motions for summary judgment: Brady's claims alleging
negligent hiring, supervision, and retention were dismissed, and
the remaining claims alleging violations of the ADA and NYHRL and
intentional infliction of emotional distress were permitted to
proceed to trial. DE 76.
Judge Wexler selected a jury on February 14, 2005. DE 66. All
of the parties subsequently consented to the referral of this
case to a magistrate judge for all purposes including the entry
of judgment pursuant to 28 U.S.C. § 636(c) and Rule 73 of the
Federal Rules of Civil Procedure. DE 67. I then presided over the
jury trial, which began on February 16, 2005, and concluded when
the jury returned its verdicts on February 23, 2005. The jury found in favor of Brady on several of his causes of
action and in favor of the defendants on others. Specifically, on
the main charge of disability discrimination, the jury found that
Brady proved that he was disabled within the meaning of the ADA
(the defendants stipulated that he was disabled within the
meaning of the state law), and that Wal-Mart subjected him to two
adverse employment actions on the basis of his disability:
transferring Brady from the pharmacy department to a position
pushing carts in the parking lot, and creating a hostile work
environment. The jury did not find that Brady had proved two
other adverse employment actions: a transfer from the parking lot
to a position in the food department, and constructive discharge.
The jury found that Chin participated in the discrimination but
did not find the same with respect to Bowen. The jury further
found that Wal-Mart had a duty to offer Brady a reasonable
accommodation for his disability but failed to do so, but
rejected Brady's claim that any of the defendants intentionally
inflicted emotional distress.
On Brady's claims relating to the job application process, the
jury found that Wal-Mart did not violate the ADA with respect to
inquiries about prescription medications, but found that the
company did violate the ADA by including a prohibited inquiry in
its job description form. The latter verdict was entered at my
direction: based on my legal rulings made over Wal-Mart's
objections, the parties agreed that the record required the jury
to find the violation with respect to the job description form.
The jury awarded Brady $9,114 in economic damages based on his
loss of back pay, $2.5 million in compensatory damages based on
the emotional trauma to which Brady attested, and nominal damages
of one dollar apiece on his reasonable accommodation and job
application process claims. The jury also awarded Brady punitive
damages on each claim that it found he had proved. Specifically, it awarded $4.5 million on the claim of
disability discrimination based on adverse employment actions,
$250,000 on the claim of failure to provide a reasonable
accommodation, and $250,000 on the claim of a prohibited inquiry
in the application process. To guard against overlapping awards,
I asked the jury to specify the total amount of punitive damages
is wished to award; the response was a total of $5 million. I did
not solicit a verdict from the jury with respect to the equitable
relief of front pay.
Both sides now seek to have me enter a judgment that differs in
some respects from the jury's verdicts on damages. With respect
to the largest part of the awards, the parties agree that the
relevant statutes forbid the full award of $5 million that the
jury unanimously decided was a proper punishment for Wal-Mart's
proven misconduct. They differ, however, as to how the award
should be reduced. Wal-Mart contends that I can award no more
than a single payment of $300,000 for all of the proven claims.
DE 103. Brady argues that there are two distinct claims that can
be the subject of separate awards: while he agrees that the
awards on the adverse employment action and
failure-to-accommodate claims must be merged into a single award
of $300,000 in punitive damages, he asserts that the award of
$250,000 for the prohibited job application inquiry was a
separate violation of the ADA and may therefore form the basis of
a separate award. He therefore seeks a total of $550,000 in
punitive damages. DE 101. With respect to back pay and front pay,
the defendants assert that neither is appropriate. DE 103 at 49-.
Brady disagrees, and requests an evidentiary hearing to determine
the amount of front pay that should be awarded. DE 101 at 4-5. II. Discussion
A. Compensatory and Punitive Damages
1. Damages Under Federal and State Law
The applicable provisions of federal law allow a successful
plaintiff such as Brady to recover both compensatory and punitive
damages, but limits such recovery to $300,000 for each
complaining party where, as here, the defendant had more than 500
employees during the relevant time period.
42 U.S.C. § 1981a(b)(3)(D); see DE 103 at 2. New York's law does not permit
any recovery of punitive damages in such cases, but places no
limitation on the amount of compensatory damages a successful
plaintiff may recover. N.Y. Exec. Law § 297(9); see Weissman v.
Dawn Joy Fashions, Inc., 214 F.3d 224, 235 (2d Cir. 2000)
(citing Thoreson v. Penthouse Int'l, Ltd., 80 N.Y.2d 490
(1992)); Greenway v. Buffalo Hilton Hotel, 951 F.Supp. 1039,
1057 (W.D.N.Y. 1997), aff'd in part, 143 F.3d 47 (2d Cir.
2. Punitive Damages The Federal Statutory Cap
Because applicable state law does not provide for punitive
damages at all, Brady may recover the punitive damages awarded by
the jury only to the extent consistent with 42 U.S.C. § 1981a.
Several courts have held that the § 1981a damages cap applies in
the aggregate to all of a plaintiff's claims. For example, after
a jury in the Western District of New York awarded an ADA
plaintiff compensatory damages in the amount of $420,300 on
plaintiff's claims of discrimination and retaliation, the court
reduced the award to $300,000 on the ground that the plain
meaning of the text of § 1981a required that result. Muller v.
Costello, 997 F.Supp. 299, 303 (W.D.N.Y. 1998), aff'd,
187 F.3d 298 (2d Cir. 1999); see also Hudson v. Reno, 130 F.3d 1193
(6th Cir. 1997); Fogg v. Ashcroft, 254 F.3d 103 (D.C. Cir.
2001) (citations omitted); Baty v. Williamette Indus., Inc., 172 F.3d 1232 (10th
Cir. 1999), overruled on other grounds by Nat'l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 116-117 (2002).
Brady seeks to distinguish such case law on the basis of three
decisions: Robertson Oil Company, Inc. v. Phillips Petroleum
Co., 871 F.2d 1368,1376 (8th Cir. 1989); Mason v. Oklahoma
Turnpike Authority, 115 F.3d 1442, 1459-60 (10th Cir. 1997); and
Atchley v. Nordam Group, Inc., 180 F.3d 1143, 1152 (10th Cir.
1999). However, as Brady concedes, all three of the cited cases
arose in "other contexts," DE 101 at 4, and I find that none of
the opinions overcomes the reasoning of cases such as Muller or
allows a court to disregard the clear meaning of the federal
statute. The underlying theme in the cited cases is that separate
awards of punitive damages are appropriate where a plaintiff
asserts separate claims that require varying standards of proof.
But in this case, unlike those Brady cites, the only law
permitting the plaintiff to recover the jury's award of punitive
damages is the ADA. In particular, the jury did not find in
Brady's favor or award him punitive damages on his claim of
intentional infliction of emotional distress. In such
circumstances, the plain meaning of § 1981a requires that Brady
be awarded one aggregate punitive damages award of $300,000.
The preceding ruling respects the law, but it does not achieve
a just result. That conclusion is not intended as a quarrel with
the federal statute's limit on compensatory damages the latter
is a policy matter as to which I claim no competence, and Brady
has in any event been awarded a large compensatory amount under
state law, the propriety of which is not now before me. Nor do I
intend either a policy criticism of the one-award-per-action rule
that Congress has written into the law or an interpretive
disagreement with the courts that have discerned the rule in the
statute. Rather, my concern is that the law creates a regime in
which smaller businesses are subject to effective punishment for violating anti-discrimination
laws but corporate behemoths such as Wal-Mart are not.
The statute calibrates its caps on punitive damages to reflect
the size of the employer whose misconduct is to be punished a
scheme that would appear designed to assure that the civil
punishment imposed on a corporate offender is meaningful but not
fatal. The smallest employers who are subject to the
anti-discrimination law those with between 15 and 100 employees
may be forced to pay no more than $50,000 in punitive damages.
42 U.S.C. § 1981a(b)(3)(A). The next largest employers, with
between 100 and 200 employees, are subject to a maximum of
$100,000, and larger companies with up to 500 employees face a
statutory damages cap of $200,000. Id. § 1981a(b)(3)(B)-(C).
But the statutory scheme goes only so far: once a company grows
beyond 500 employees, the law fixes the maximum amount of
punitive damages at $300,000, regardless of whether the company
barely meets the minimum requirement or, as here, is a
"commercial titan" recognized as the "world's largest retailer."
Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 101
(2d Cir.), cert. denied, 125 S. Ct. 2277 (2005); see
42 U.S.C. § 1981a(b)(3)(D).
The smallest employers covered by the statute can truly feel
the pinch of punitive damages even though they are capped for
such a company at $50,000. By contrast, the record shows that,
with total net sales of $256 billion in 2004, see Transcript of
Trial ("Tr.") 828, it took Wal-Mart only 37 seconds last year to
achieve sales equal to the $300,000 it must now pay Brady in
punitive damages. There is no meaningful sense in which such an
award can be considered punishment. In essence then, most
companies can be punished if they intentionally discriminate on the basis of disability (or race, or sex, or other invidious
considerations), but the biggest companies that do so are
effectively beyond the law's reach.
That Wal-Mart perceives such effective immunity from the civil
punishment scheme is to some extent supported by the facts proved
at trial. Despite entering into a consent decree to settle
previous complaints of ADA violations, Wal-Mart asked Brady the
same type of prohibited questions it had previously agreed to
abandon, and its employees were entirely ignorant of the
anti-discrimination policies that Wal-Mart had previously agreed
to disseminate. Moreover, Wal-Mart's witnesses virtually to a
person displayed a surprising inability or unwillingness to
acknowledge Brady's disability, which was apparent to all others.
Observing the testimony, I frankly found several of Wal-Mart's
witnesses to be wholly incredible in attesting to ignorance of
Brady's disability. The most generous conclusion I could draw
from the testimony in this case and the conclusion I did draw
was that the Wal-Mart employees who testified are
well-intentioned people whom the company willfully failed to
provide with sufficient training to abide by the
The result was that Brady was subjected to the kind of
discrimination against the disabled that both the law and the
prior consent decree were designed to prevent. Brady will receive
adequate compensation for that discrimination. But in the absence
of the effective punitive sanctions that are available against
smaller companies, it appears unlikely that the award in this
case can suffice to restrain Wal-Mart from inflicting similar
abuses on those who may be doomed to follow in Brady's footsteps.
Federal law permits an award of punitive damages of no more
than $300,000 in this case, notwithstanding an impartial jury's
considered view of how to impose a punishment that would be just under all of the circumstances, and notwithstanding the
inescapable reality that such an award inflicts no meaningful
punishment on Wal-Mart at all. I must therefore reduce the jury's
award of $5 million in punitive damages to $300,000.
3. Compensatory Damages
The parties appear to agree that the jury's award of $2.5
million in compensatory damages should be allocated entirely to
Brady's state law claim (thereby avoiding further reduction of
the $300,000 award on the federal claim). See DE 101 at 1, n.
1; DE 103 at 2, n. 2. The ADA explicitly preserves Brady's right
to recover damages under state law not available under federal
law, see 42 U.S.C. § 12201(b), and, as noted above, the
applicable state law places no limit on the amount of
compensatory damages that Brady may recover. Greenway,
951 F. Supp. at 1057. Other courts, in this district and elsewhere, have
acted similarly to allocate jury awards between statutorily
capped federal claims and unlimited state claims so as to most
nearly reflect the jurors' verdicts. See Luciano v. Olsten
Corp., 912 F.Supp. 663, 675-76 (E.D.N.Y.) (Spatt, J.), aff'd,
110 F.3d 210 (2d Cir. 1997); Gagliardo v. Connaught Lab., Inc.,
311 F.3d 565, 570-71 (3d Cir. 2002); Passantino v. Johnson &
Johnson, 212 F.3d 493 (9th Cir. 2000); Martini v. Fed. Nat'l
Mortgage Ass'n, 178 F.3d 1336 (D.C. Cir. 1999); but see Oliver
v. Cole Gift Centers, Inc., 85 F. Supp. 2d 109, 113-14 (D. Conn.
2000) (citing cases where allocation found inappropriate where
capped award under federal law adequately compensated plaintiff
or permitted greater recovery than allowed by state law). Given
the weight of authority and the lack of dispute on the matter, I
allocation all of the jury's $2.5 million compensatory damages
award an award that the jury was instructed must compensate
Brady for actual losses, and could not serve as a form of
punishment to Brady's state law claim. B. Back Pay
An award of back pay (like an award of front pay, which I
address below) is a remedy designed to make whole a plaintiff who
has succeeded in proving employment discrimination. See Townsend
v. Exch. Ins. Co., 196 F. Supp.2d 300, 306 (W.D.N.Y. 2002). As
noted above, the jury found that Wal-Mart, for discriminatory
reasons, subjected Brady to two forms of adverse employment
actions (the transfer to the parking lot and the creation of a
hostile work environment), but the jury also found that Brady
failed to prove that he was constructively discharged. An award
of back pay therefore does nothing to make Brady whole for actual
losses caused by proven violations of the law, and there is thus
no basis for such an award in this case.
A constructive discharge "occurs when the employer
`deliberately makes an employee's working conditions so
intolerable that the employee is forced into an involuntary
resignation.'" Less v. Nestle Co., Inc., 705 F.Supp. 110, 114
(W.D.N.Y. 1988) (citations omitted). A plaintiff who voluntarily
resigns and is not subjected to constructive discharge generally
cannot recover back pay. This constructive discharge rule
provides incentive both for the employee, who should assail the
discrimination while remaining employed, and for the employer,
who should have an opportunity to remedy the discrimination.
Nobler v. Beth Israel Med. Ctr., 715 F. Supp. 570, 571-72
(S.D.N.Y. 1989); see also Townsend, 196 F. Supp.2d at 308-310
(discussing various constructive discharge cases). Although the
Second Circuit has not yet addressed this rule, it has been
applied in other circuits. See, e.g., Marrero v. Goya of Puerto
Rico, Inc., 304 F.3d 7 (1st Cir. 2002); Hertzberg v. SRAM
Corp., 261 F.3d 651 (7th Cir. 2001); Caviness v. Nucor-Yamato
Steel Co., 105 F.3d 1216 (8th Cir. 1997); Mallison-Montague v.
Pocrnick, 224 F.3d 1224 (10th Cir. 2000). Based on this case law and the jury's verdicts in
this case, the defendants' application to strike the jury's award
of back pay is granted.
C. Front Pay
Brady seeks an additional award of front pay to compensate him
for what he claims is "ongoing economic loss" resulting from the
defendants' discrimination. DE 101 at 5. Brady does not seek a
specific amount, but asks to convene an evidentiary hearing, at
which he would proffer the expert testimony of Professor Mark
Killingsworth. In a report submitted prior to trial, DE 65 Ex. I,
Prof. Killingsworth described several scenarios for Brady's
future career, with and without the discrimination complained of
here, to attempt to quantify that continuing economic harm.
Starting from the premise that Brady was "terminated by Wal-Mart
in August 2002," id., Prof. Killingsworth projects that Brady's
future losses are anywhere from $222,657 to $401,044. Id.
Because Brady failed to prove his constructive discharge claim,
and even more importantly because I have greater faith in Brady's
abilities than his expert's analysis takes into account, I
decline to award front pay.
The defendants contend that the constructive discharge rule
discussed above with respect to back pay also applies to awards
of front pay. DE 103 at 4-5; see Townsend,
196 F. Supp.2d at 311 (noting, but not addressing, this argument). Here again, the
Second Circuit has not yet addressed the matter, but other
circuits have done so, and their decisions support the
defendants' argument. See Hertzberg, 261 F.3d 651; Pocrnick,
224 F.3d 1224. In this regard, I find the explicit assumption in
Prof. Killingsworth's expert report illuminating: in making his
projection, he took it as given that Brady was "terminated by
Wal-Mart in August 2002." But the jury has since found otherwise.
Whatever Brady's subjective reasons for leaving Wal-Mart were, he
has not proved that Wal-Mart objectively forced him to resign. It
would therefore be inequitable to require Wal-Mart to compensate
him for any loss arising from his voluntary decision to leave the
company rather than challenging its discriminatory practices
while remaining employed there.
Moreover, an award of front pay under the ADA, as under Title
VII, is discretionary. Reed v. A.W. Lawrence & Co.,
95 F.3d 1170, 1182 (2d Cir. 1996) (Title VII case) (citing Saulpaugh v.
Monroe Community Hosp., 4 F.3d 134, 145 (2d Cir. 1993)); Hine
v. Mineta, 238 F. Supp.2d 497, 501 (E.D.N.Y. 2003) (Title VII
case); Greenway, 951 F. Supp. at 1064 (ADA case). Even without
resort to the constructive discharge rule, I would decline to
make a discretionary award of front pay under the circumstances
of this case.
Front pay provides a remedy in those situations where
reinstatement is inappropriate and a plaintiff has been unable to
find another job, and where the fact-finder can reasonably
predict that a plaintiff has no reasonable prospect of obtaining
comparable alternative employment. Reed, 95 F.3d at 1182
(citations omitted). Stated differently, front pay "`represents
compensation for future losses that the plaintiff would not
suffer but for the discriminatory acts of the defendant.'"
Hine, 238 F. Supp.2d at 501 (citing Rivera v. Baccarat, Inc.,
34 F.Supp.2d 870, 877 (S.D.N.Y. 1999)). A plaintiff has "the duty
to exercise reasonable diligence in mitigating damages by seeking
alternative employment." Id. (citations omitted). Further, the
alternative employment need not be identical to plaintiff's job
duties or remuneration at his prior position. Hill v. Airborne
Freight Corp., 2003 WL 366641, *5 (E.D.N.Y. Feb. 20, 2003)
(citations omitted). Front pay should not be awarded if the
calculation method is unduly speculative. Hine,
238 F. Supp.2d at 501 (citations omitted); Hill, 2003 WL 366641 at *5
(citations omitted). Furthermore, courts should review a plaintiff's entire award to
determine whether a front pay award is appropriate. Hill, 2003
WL 366641 at *5 (citations omitted).
Applying these principles to the facts of the case makes an
award of front pay inappropriate. Brady earned $7.25 per hour
during his brief stint at Wal-Mart in the summer of 2002. Tr.
185. In June 2003, Brady started work at Stop and Shop bagging
groceries and stocking shelves, eventually earning $6.25 per
hour. Tr. 248-49. Brady found alternative employment albeit at
a lesser wage and mitigated his damages. Moreover, Brady
graduated from college in January 2005; during the trial, he said
that he would soon start searching for full-time employment. Tr.
251-52. I have little doubt that the ambitious and thoughtful
young man who testified with such poise at trial will succeed in
making a career for himself. At this early stage of his life, any
award of front pay would reflect an unwarranted pessimism about
what Patrick Brady can and, I suspect, will accomplish. It would
therefore be unduly speculative.
Finally, in the context of the entire award that Brady is
entitled to recover, no award of front pay, however speculative,
is needed to ensure that he receives fair compensation for
Wal-Mart's discriminatory conduct. The jury's award of
compensatory and punitive damages provides sufficient redress. I
recognize that the parties may yet seek further adjustments to
Brady's overall recovery the defendants may seek to challenge
the compensatory damages award as unreasonably high, and Brady
may seek reasonable costs including attorneys' fees pursuant to
42 U.S.C. § 12205 but as the award now stands, I cannot say
that an additional award is needed to achieve a fair remedy. I
therefore deny Brady's application for front pay. III. Conclusion
For the reasons set forth above, the jury's award of punitive
damages award is reduced to one aggregate sum of $300,000; the
jury's award of compensatory damages is allocated in its entirety
to Brady's successful discrimination claim under New York state
law; the defendants' application to strike the jury's award of
back pay is granted; and Brady's application for an award of
front pay is denied. The Clerk of the Court shall enter judgment
IT IS ORDERED:
that plaintiff Patrick S. Brady recover from
defendants Wal-Mart Stores, Inc. and Yem Hung Chin
the amount of $2,500,000 in compensatory damages;
that plaintiff Patrick S. Brady recover from
defendant Wal-Mart Stores, Inc. the amount of
$300,000 in punitive damages;
that plaintiff Patrick S. Brady recover from
defendant Wal-Mart Stores, Inc. the amount of $2 in
that the jury's award of $9,114 in economic damages
is stricken; that plaintiff Patrick S. Brady's
application for an award of front pay is denied; and
that all of the claims against defendant James Bowen
are dismissed with prejudice.
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