United States District Court, E.D. New York
September 10, 2005.
CHARLES J. EDWARDS, Plaintiff,
BROOKHAVEN SCIENCE ASSOCIATES, LLC, Defendant.
The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
This is a case brought by Charles J. Edwards ("Edwards" or the
"Plaintiff") against his former employer the Brookhaven Science
Associates, LLC ("BSA" or the "Defendant") under the Americans
with Disabilities Act ("ADA") alleging claims of hostile work
environment and retaliatory discharge. Presently before the Court
are motions by the Defendant for summary judgment and to strike the
Plaintiff's demand for compensatory damages and a jury trial.
The Brookhaven National Laboratory ("BNL") is a research
facility operated by BSA pursuant to a contract between the BSA
and the United States Department of Energy ("DOE"). Edwards was
employed by BSA as a Security Police Officer II ("SPO") at BNL.
SPOs are responsible for protecting the facility and the
interests of the DOE. In that capacity, the SPOs are trained and
required to carry a .38 caliber revolver and a MP5 machine gun as
part of their official duties. The weapons are kept at the BNL
armory and issued to the SPO each day when they start their
shift. In order to carry these weapons, the DOE requires that all
SPOs obtain and maintain a DOE-issued Firearm Authority Card
Edwards commenced employment as a SPO on March 26, 1990, and
remained in that position until the termination of his employment
on November 8, 2002. On July 11, 2001, Edwards was participating
in a routine training procedure at the BNL firing range called a
"stress course," which requires officers to run with their
equipment, stop, and then load and fire their weapon. During this
training exercise, Edwards' left hand slipped off the stock of
the MP5 and onto the hot vent and barrel of the weapon. As a
result, Edwards burned his left index finger. Edwards was taken
to a local hospital via ambulance and treated for his injuries. The firing range was
subsequently closed after this incident for an unknown period of
time and BSA conducted an investigation.
Edwards was medically cleared to return to work approximately
one week after the injury and BSA permitted Edwards to perform
clerical work in the security building. As a result of the
investigation that followed, Edwards was not disciplined for the
incident, but it was recommended that he undergo re-training on
the MP5 and .38 caliber revolver. Edwards participated in and
completed a retraining course for every procedure on both weapons
and he was also re-certified in connection with his annual
qualifications for maintaining his FAC.
During the period of his retraining, Edwards claims that he was
continually harassed by Training Specialist in Safeguards and
Security Kathleen Walker ("Walker") and by Training Captain
Michael Delph ("Captain Delph"). The harassment consisted of
threats of retaliation for having caused the range to be closed;
repeatedly asking the Plaintiff to see his finger; changes in his
work schedule; publicly displayed BSA safety bulletins referring
to the July 11, 2001 incident; and at least one incident where
Captain Delph placed a rubber finger in a petri dish on a table
in the cafeteria while a number of employees were present.
Captain Delph allegedly made comments such as, "Let me see your
finger. You closed my range. You are going to get more training."
As a result of these incidents, on November 20, 2001, Edwards
filed a charge of disability discrimination with the New York State Division of Human Rights
and the Equal Employment Opportunity Commission.
On October 16, 2002, Edwards was involved in an accidental
discharge of his MP5 while he was being issued his weapon at the
BNL armory. When SPOs obtain their weapons from the armory, they
are required to point the unloaded gun into a clearing barrel,
rack it, remove the safety, pull the trigger, and place the
magazine in the gun. A clearing barrel is a 55-gallon drum filled
with sand that is intended to function as a repository in the
event of an accidental discharge. Edwards acknowledged that he
had made a human error in loading his weapon, which caused the
After the incident, Edwards continued to work for BSA but was
not permitted to carry a weapon. The BSA's Firearm Safety
Committee ("FSC") met to investigate the accidental discharge.
The investigation into the accidental discharge was the first
investigation that the FSC had conducted regarding an accidental
discharge since 1988. After the investigation, the FSC concluded
that the accidental discharge was due to human error and
recommended that Edwards' authority to carry a firearm at BNL be
rescinded. That recommendation was forwarded to BSA management,
who concurred. The recommendation was eventually forwarded to the
DOE, the entity charged with issuing the weapons permit, for
consideration. On November 4, 2002, the DOE issued an order
revoking Edwards' FAC. Once revoked, Edwards could not carry a
firearm as required to perform his duties as a SPO. At the time,
there were only two positions in the BSA police organization that did not require a FAC and both
of the positions were filled. On November 8, 2002, Edwards'
employment was terminated. BSA advised Edwards that his
employment was terminated because he had two incidents with his
MP5 in a sixteen month period and the DOE had revoked his FAC.
In this lawsuit Edwards contends that his termination was in
retaliation for the previous filing of a complaint of disability
discrimination. In his complaint in this action, he seeks
compensatory damages and pleads two federal claims under the ADA:
(1) a disability-based hostile work environment claim under
42 U.S.C. § 12112(a); and (2) a retaliatory discharge claim under
42 U.S.C. § 12203. The Defendant moves pursuant to Rule 56 of the
Federal Rules of Civil Procedure ("Fed.R.Civ.P.") for summary
judgment dismissing the complaint and, in the alternative, to
strike the Plaintiff's demand for compensatory damages and a jury
trial relating to the retaliatory discharge claim.
A. The Summary Judgment Standard
Summary judgment is appropriate if the record "shows that there
is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322, 106 S. Ct. 2548, 2550 (1986); Wilkinson v. Russell,
182 F.3d 89 (2d Cir. 1999); Turner v. General Motors Acceptance
Corp., 180 F.3d 451 (2d Cir. 1999); In Re Blackwood Associates, L.P., 153 F.3d 61, 67 (2d Cir. 1998)
(citing Fed.R.Civ.P. 56(c). In deciding a summary judgment
motion, the district court must resolve all ambiguities and draw
all reasonable inferences in the light most favorable to the
opposing party. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 155, 106 S. Ct. 2505, 2513-14 (1986); Amato v. City of
Saratoga Springs, 170 F.3d 311, 322 (2d Cir. 1999) (citing
Skubel v. Fuoroli, 113 F. 3d 330, 334 (2d Cir. 1997)); Castle
Rock Entm't, Inc. v. Carol Pub. Group, Inc., 150 F.3d 132, 137
(2d Cir. 1998) (citing Garza v. Marine Transp. Lines, Inc.,
861 F.2d 23, 26 (2d Cir. 1988)). Disputed facts that are not material
to the issue at hand will not defeat summary judgment. See
Anderson, 477 U.S. at 248, 106 S. Ct. at 2610. "Only disputes
over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of judgment."
Id. A dispute about a material fact is genuine "if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party." Id.
Notably, "the trial court's task at the summary judgment motion
state of litigation is carefully limited to discerning whether
there are genuine issues of material fact to be tried, not to
decide them. Its duty, in short, is confined at this point to
issue-finding, it does not extend to issue resolution." Gallo v.
Prudential Residential Servs. Ltd., 22 F.3d 1219, 1224 (2d Cir.
1994); see Donohue v. Windsor Locks Board of Fire
Commissioners, 834 F.2d 54, 57 (2d Cir. 1987) (holding that on a
motion for summary judgment, the court "cannot try issues of fact; it can only
determine whether there are issues to be tried").
B. The Disability-Based Hostile Work Environment Claim
The Second Circuit has not directly addressed whether the ADA
gives rise to a cause of action for hostile work environment.
See, e.g., Bonura v. Sears Roebuck & Co., 62 Fed. Appx. 399,
400 n. 3, 2003 WL 21024620, at *1 n. 3 (2d Cir. 2003). However,
several other circuit and district courts have recognized such
claims. See, e.g., Fox v. GMC, 247 F.3d 169, 176 (4th Cir.
2001); Flowers v. S. Reg'l Physician Servs., 247 F.3d 229,
232-35 (5th Cir. 2001); De La Cruz v. Guilliani, No. 00-7102,
2002 U.S. Dist. LEXIS 19922, at *28 (S.D.N.Y. Aug. 23, 2002);
Hendler v. Intelecom USA, Inc., 963 F. Supp. 200, 208 (E.D.N.Y.
1997); Hudson v. Loretex Corp., 1997 U.S. Dist. LEXIS 4320, No.
95-844, 1997 WL 159282, at *2-3 (N.D.N.Y. Apr. 2, 1997).
Regardless of the whether the ADA does allow for a hostile work
environment claim, a plaintiff suing for disability
discrimination must establish a prima facie case of
discrimination under the ADA. See Regional Econ. Cmty. Action
Program, Inc. v. City of Middletown, 294 F.3d 35, 49 (2d Cir.
2002); Balonze v. Town Fair Tire Ctrs., Inc., No. 02-2247,
2005 U.S. Dist. LEXIS 5317, 25-26 (D. Conn. March 31, 2005); see
also Fox, 247 F. 3d at 177 (stating elements of an ADA based
hostile work environment claim). Because this Court finds that
the Plaintiff cannot establish a prima facie case of discrimination under the standards used in ADA cases, this Court
need not reach the issue of whether the ADA supports a cause of
action for hostile work environment.
In order to establish a prima facie case of discriminatory
discharge, a plaintiff must show that: (1) the employer is
subject to the ADA; (2) he suffers from a disability within the
meaning of the ADA; (3) he could perform the essential functions
of his job with or without reasonable accommodation; and (4) he
suffered an adverse employment action because of the disability.
See Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 869 (2d Cir.
In Fox, the Fourth Circuit incorporated the elements of a
prima facie case of discrimination under the ADA into the
elements necessary to establish an ADA-based hostile work
environment claim. 247 F.3d at 177. The court stated that the
plaintiff must prove:
(1) he is a qualified individual with a disability;
(2) he was subjected to unwelcome harassment; (3) the
harassment was based on his disability; (4) the
harassment was sufficiently severe or pervasive to
alter a term, condition, or privilege of employment;
and (5) some factual basis exists to impute liability
for the harassment to the employer.
The crucial issue in this case is whether the Plaintiff was a
qualified individual with a disability under the ADA at the time
of the harassment. Title 42 U.S.C. § 12102 (2) defines a
(A) a physical or mental impairment that
substantially limits one or more of the major life
activities . . .; (B) a record of such an impairment; or
(C) being regarded as having such an impairment.
In this case, Edwards does not claim that he ever had a
physical or mental impairment that substantially limits his life
activity. Rather, Edwards claims that he suffered harassment
because BSA employees perceived or regarded him as disabled.
Under the ADA, a plaintiff is considered "disabled" if he can
show that he is perceived by his employer as having such an
impairment. Id.; Colwell v. Suffolk County Police Dept.,
158 F.3d 635, 641 (2d Cir. 1998); see, e.g., Tubens v. Police
Dep't, 48 F. Supp. 2d 412, 416 (S.D.N.Y. 1999).
An employee can be "regarded" or "perceived" as disabled in two
ways: "(1) a covered entity mistakenly believes that a person has
a physical impairment that substantially limits one or more major
life activities, or (2) a covered entity mistakenly believes that
an actual, nonlimiting impairment substantially limits one or
more major life activities." Sutton v. United Air Lines, Inc.,
527 U.S. 471, 489, 119 S. Ct. 2139, 2149-50, 144 L. Ed.2d 450
(1999). Edwards' allegation falls within the first category, that
is, Edwards' argues that BSA mistakenly believed he had a
physical impairment that substantially limits one or more major
To succeed under this "perceived" or "regarded as" ADA claim, a
plaintiff must show more than "that the employer regarded that
individual as somehow disabled; rather, the plaintiff must show that the employer regarded the
individual as disabled within the meaning of the ADA." Jacques
v. DiMarzio, Inc., 386 F.3d 192, 201 (2d Cir. 2004) (quoting
Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 646 (2d
Cir. 1998)). The Second Circuit uses a three-step process for
determining whether a plaintiff has a "disability" that is
protected by the ADA. Id. The court considers: "(1) whether the
plaintiff suffered from a physical or mental impairment, (2)
whether the life activity upon which the plaintiff relied
constitutes a major life activity under the ADA, and (3) whether
the plaintiff's impairment substantially limited the major life
activity identified." Id. (quoting Colwell, 158 F.3d at 641)
(citations and quotations omitted).
The Supreme Court has noted that "merely having an impairment
does not make one disabled for purposes of the ADA." Toyota
Motor Mfg. v. Williams, 534 U.S. 184, 195, 122 S. Ct. 681,
151 L. Ed. 2d 615 (2002). A plaintiff must also demonstrate that the
impairment substantially limits a major life activity. See
42 U.S.C. § 12102(2)(A). The term "major life activity" is defined
by the regulations as including functions such as "caring for
oneself, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working."
29 C.F.R. § 1630.2(i). In addition, to qualify as "disabled," a plaintiff
must show that the limitation on the major life activity is
"substantial." 42 U.S.C. § 12102(2)(A). Thus, in order to be
considered "substantially limited in performing manual tasks, an
individual must have an impairment that prevents or severely
restricts the individual from doing activities that are of
central importance to most people's daily lives. The impairment's impact
must also be permanent or long-term." Toyota Motor Mfg. at 198,
122 S. Ct. 681, 151 L. Ed. 2d 615.
In Giordano v. City of New York, 274 F.3d 740, 748 (2d Cir.
2001), the Second Circuit analyzed the same decisive issue as is
presented in this case, that is, the employer's perception of his
or her employee's alleged impairment. In that case, the plaintiff
was a police officer who claimed that the defendants mistakenly
believed he was unable to perform his job as a police officer
because of his use of the drug Coumadin. "The decisive issue . . .
[was] whether the plaintiff introduced evidence to support the
allegation that the defendants regarded him as disqualified not
only from full-duty patrol as an NYPD police officer but from
`working.'" Id. at 749. The court affirmed the dismissal of the
plaintiff's claim because he was unable to adduce any evidence
that suggested that the defendants perceived him as unable to
work in a "broad class of jobs." Id. at 750. The court found it
irrelevant that the plaintiff was able to show that the defendant
regarded him as disabled from police work that involved a
substantial risk of physical confrontation. Id. at 749.
Similarly, here the Plaintiff has failed to come forward with
any evidence that suggests that the Defendant perceived him as
unable to work in a broad class of jobs. In addition, the
Plaintiff cannot show that the defendants regarded him as having
an impairment "that prevents or severely restricts the individual
from doing activities that are of central importance to most
people's daily lives." Toyota Motor Mfg., 534 U.S. at 198, 122 S. Ct. 681, 151 L. Ed. 2d 615. The undisputed evidence
shows that Edwards' July 2001 finger injury was "temporary" and
did not limit his ability to perform daily tasks. Indeed, BSA
assigned Edwards to clerical work as soon as he was medically
cleared to return to work. As in Giordano, there is no evidence
that the defendant regarded him as disabled from anything more
than specific duties that require the ability to use and carry a
firearm. The Supreme Court has noted, "the manual tasks unique to
any particular job are not necessarily important parts of most
people's lives." Toyota Motor Mfg., 534 U.S. at 201. Thus,
being unable to do a specific job-related task is insufficient
proof of a disability under the ADA. See, e.g., Balonze,
2005 U.S. Dist. LEXIS 5317 (D. Conn. 2005). Accordingly, the Court
finds that the Plaintiff has failed to set forth any evidence
that his injury was perceived as a qualified disability under the
ADA. For this reason, the Court grants the Defendant's motion for
summary judgment and dismisses Edwards' ADA disability
discrimination and hostile work environment harassment claims.
C. The Retaliation Claim
1. The Summary Judgment Motion
To establish a prima facie case for retaliation under the ADA,
a plaintiff must allege that: "(1) the employee was engaged in an
activity protected by the ADA, (2) the employer was aware of that
activity, (3) an employment action adverse to the plaintiff
occurred, and (4) there existed a causal connection between the
protected activity and the adverse employment action." Sarno v. Douglas Elliman-Gibbons
& Ives, Inc., 183 F.3d 155, 159 (2d Cir. 1999). A causal
connection "can be established indirectly by showing that the
protected activity was closely followed in time by the adverse
action." Manoharan v. Columbia University College of Physicians
& Surgeons, 842 F.2d 590, 593 (2d Cir. 1988). The causal
connection can also be established "directly, through evidence of
retaliatory animus directed against the plaintiff by the
defendant." Knight v. City of New York, 303 F. Supp. 2d 485,
496 (S.D.N.Y. 2004) (quoting Gordon v. N.Y. City Bd. of Educ.,
232 F.3d 111, 117 (2d Cir. 2000)).
In a motion for summary judgment, once the plaintiff has
alleged a prima facie case the burden shifts to the employer to
rebut the presumption of discrimination by articulating a
legitimate nondiscriminatory reason for the termination or
adverse employment action. Bickerstaff v. Vassar Coll.,
196 F.3d 435, 446 (2d. Cir. 1999) (citations omitted). The employer
merely needs to "explain what he has done." Burdine,
450 U.S. at 256 (citations omitted). Should the employer carry this
burden, the question then turns to whether the plaintiff can
prove that the employer's proffered reason was not the true
reason or the only reason for the termination and was rather a
pretext, masking discriminatory intent. See Bickerstaff,
196 F.3d at 446. "Although intermediate evidentiary burdens shift
back and forth under this framework, `[t]he ultimate burden of
persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff remains at all time with the
plaintiff.'" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142,
120 S. Ct. 2097, 2106, 147 L. Ed. 2d 105 (2000) (quoting Burdine,
450 U.S. at 253, 101 S. Ct. 1089, 67 L. Ed. 2d 207).
Taking the facts in light most favorable to the plaintiff, the
Court finds that the Plaintiff is able to meet the minimal
threshold to establish a prima facie case of retaliation. The
undisputed evidence shows that Edwards filed a claim of
discrimination with the EEOC on November 20, 2001, and was
subsequently terminated from employment on November 8, 2002, less
than a year after filing his complaint.
The Defendant rebuts the prima facie case of retaliation by
contending that it had a legitimate, non-retaliatory reason for
terminating Edawards' employment. Namely, BSA states that
Edwards' FAC certification, which granted him the authority to
carry the required weaponry, was revoked by the DOE due to the
two errors he made in using his MP5 machine gun. The first
incident involved burning his finger and the second incident
involved the accidental discharge into the clearing barrel. These
incidents were within a sixteen months period. BSA argues that
DOE's revocation of Edwards' FAC as a result of these incidents
rendered him unable to perform his job as a SPO, and therefore
BSA terminated his employment.
In response, Edwards has adduced evidence of retaliatory animus
by way of disparate treatment. Edwards argues that he has
evidence of similar errors being made by other SPOs in the use
and handling of the MP5 that did not lead to revocation of the
FAC certification. During discovery, the Plaintiff had the
clearing barrel inspected for evidence of other accidental discharges and found four spent
bullets in the barrel. At the trial, the Plaintiff intends to
introduce the bullets and documents to show there were other
incidents of accidental discharges into the clearing barrel that
were similar to the accident involving the Plaintiff. Also, the
Plaintiff has produced deposition testimony from two other BSA
Police Officers who held the same position as the Plaintiff, both
of whom testified that they had experienced accidental discharges
of their weapons into the same clearing barrel in the presence of
supervising officers. In these similar occurrences, the Plaintiff
intends to show that BSA never investigated the circumstances of
the accidental discharge and that they never resulted in a
recommendation to revoke a SPO's weapon certification.
Assuming all of these facts are true, a reasonable jury could
infer that Edwards was treated in a disparate manner due to his
prior complaint of discrimination against BSA. Thus, the jury
could find that the decisions to investigate the accidental
discharge; recommend revocation of the FAC; and ultimately
terminate Edwards, were influenced by retaliatory animus, a basis
prohibited by the ADA. Accordingly, the Court is persuaded that
Edwards has satisfied his burden with regard to his retaliation
claim and denies the Defendant's motion for summary judgment.
2. The Motion to Strike Plaintiff's Demand for Compensatory
Damages and a Jury Trial
The Defendant requests that the Court strike Edwards' claim for
compensatory damages and jury demand with respect to his
retaliatory discharge claim, arguing that the ADA only provides equitable relief for retaliation claims.
Although the Seventh Circuit in Kramer v. Banc of Am. Secs.
LLC, 355 F.3d 961 (7th Cir.), cert. denied, 124 S. Ct. 2876,
159 L. Ed. 2d 798 (2004), held that a plaintiff can only recover
equitable relief for a retaliation claim under the ADA, the
Second Circuit has not addressed this issue. Rather, it appears
that the Second Circuit, without analyzing the issue, has
affirmed an award of compensatory damages in a retaliation case
brought under the ADA. See, e.g., Muller v. Costello,
187 F.3d 298 (2d Cir. 1999); see also Lovejoy-Wilson v. Noco Motor
Fuels, Inc., 242 F. Supp. 2d 236, 241 (W.D.N.Y. 2003) (holding
that compensatory and punitive damages are available to remedy an
employer's retaliation based on a prior complaint of disability
Other courts that have addressed the issue are divided.
Compare Rhoads v. FDIC, No. 94-1548, 2002 U.S. Dist. LEXIS
21865, at *1-2 (D. Md. Nov. 7, 2002) (allowing compensatory
damages for a claim of retaliation under the ADA), and Ostrach
v. Regents of the University of California, 957 F. Supp. 196,
200-01 (E.D. Cal. 1997) (same), with Santana v. Lehigh Valley
Hosp. & Health Network, No. 05-1496, 2005 U.S. Dist. LEXIS
16677, at *1 (E.D. Pa. Aug. 11, 2005), and Sabbrese v. Lowe's
Home Ctrs., Inc., 320 F. Supp. 2d 311 (W.D. Pa. 2004), and Sink
v. Wal-Mart Stores, 147 F. Supp. 2d 1085, 1100-01 (D. Kans.
2001) (finding that compensatory and punitive damages are not
available for retaliatory discharge claim), Boe v. AlliedSignal
Inc., 131 F. Supp. 2d 1197, 1202-03 (D. Kans. 2001) (same), and
Brown v. City of Lee's Summit, No. 98-0438, 1999 U.S. Dist. LEXIS 17671, *7-8 (W.D. Mo. June 1,
1999) (same); see also Salitros v. Chrysler Corp.,
306 F.3d 562, 570 (8th Cir. 2002) (affirming without examining whether
compensatory damages were authorized for an ADA retaliation
claim); EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241 (10th Cir.
Therefore the Court must decide in this case whether
compensatory damages are permitted under the ADA. In general, a
party is not entitled to a jury determination on the question of
lost wages, whether in the form of back pay or front pay, because
such awards have historically been considered equitable remedies.
Broadnax v. City of New Haven, 415 F.3d 265 (2d Cir. 2005)
(citing Robinson v. Metro-North Commuter R.R., 267 F.3d 147,
157 (2d Cir. 2001). Thus, resolution of this issue not only
impacts the type of relief that the Plaintiff is entitled to, but
also determines whether he is entitled to a jury trial on this
issue. See, e.g., 8 James Wm. Moore, et al., Moore's Federal
Practice Civil § 38.33(e)(i).
In resolving this issue, the Court will look to sound
principles of statutory interpretation and case law. See
Spector v. Norwegian Cruise Line Ltd., 125 S. Ct. 2169, 2177,
162 L. Ed. 2d 97 (2005). As with any other ordinary issue of
statutory interpretation, the Court will examine the language of
the statute "in light of context, structure, and related
statutory provisions." Exxon Mobil Corp. v. Allapattah Servs.,
125 S. Ct. 2611, 2620, 162 L. Ed. 2d 502 (2005). The ADA was enacted, in part, to assist in remedying the
problems related to access by persons with disabilities to public
facilities, employment, and transportation services.
42 U.S.C. §§ 12101-213. The Act is divided into three main subchapters known
as "Titles" and one relevant fourth subchapter known as "Title V"
which is named "Miscellaneous Provisions." Title I of the Act
proscribes discrimination in the terms and conditions of
employment. Id. § 12111-17. Title II of the Act proscribes
discrimination against the disabled regarding access to public
services. Id. § 12132 ("No qualified individual with a
disability shall . . . be excluded from participation in or be
denied the benefits of the services, programs, or activities of a
public entity, or be subjected to discrimination by any such
entity."). Title III of the ADA proscribes discrimination against
the disabled in public accommodations. Id. § 12182(a) ("No
individual shall be discriminated against on the basis of
disability in the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, or accommodations
of any place of public accommodation by any person who owns . . .
or operates a place of public accommodation.").
Each of these three primary subchapters contains its own
remedies and enforcement provisions. See 42 U.S.C. §§ 12117,
12133, 12188. For example, a claim of employment discrimination
under the provisions of Title I of the ADA entitle the prevailing
plaintiff to those remedies available to plaintiff under Title
VII of the Civil Rights Act of 1964, as amended by the Act of
1991. See 42 U.S.C. § 12117. Under the 1991 amendments to the Civil Rights Act of 1964, plaintiffs who
prevail on claims of discrimination may recover compensatory and
punitive damages, and thus also demand and receive a trial by
jury. 42 U.S.C. § 1981a(c)(1).
The "Miscellaneous Provisions" in Title V of the ADA contain
the retaliation provision. Section 12203 prohibits retaliation
for complaints of disability discrimination by stating:
(a) Retaliation. No person shall discriminate against
any individual because such individual has opposed
any act or practice made unlawful by this Act or
because such individual made a charge, testified,
assisted, or participated in any manner in an
investigation, proceeding, or hearing under this Act.
42 U.S.C. § 12203. Unlike Titles I-III of the ADA, the
retaliation provision contains no specific enforcement or
remedial provision of its own. Rather, the statute states that
"[t]he remedies and procedures available under sections ,
, and  of this Act shall be available to aggrieved
persons for violations of subsection? (a) . . . with respect to
title I, title II and title III, respectively." Id.
In the employment discrimination context, the retaliation
provision in the ADA refers the reader to 42 U.S.C. § 12117 for
its remedy, which in turn adopts the remedies set forth in Title
VII, specifically 42 U.S.C. § 2000e-5 and
42 U.S.C. § 1981a(a)(2). See id. § 12117. Thus, the remedies for
violations of § 12230 of the ADA and § 12117 of the ADA are
coextensive with the remedies available in a private cause of
action brought under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e-5. Under the Civil Rights Act of 1991,
employees who prevail on a claim under Title I of the ADA may recover compensatory and punitive damages and demand and
receive a trial by jury. See 42 U.S.C. § 1981(a)(2).
In Kramer, the Seventh Circuit concluded that the 1991 Civil
Rights Act did 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."
355 F.3d at 965. The Seventh Circuit reached this conclusion by
confining its analysis to a reading of § 1981(a)(1), finding that
it "permits recovery of compensatory and punitive damages . . .
only for those claims listed therein." Id. The court noted that
"claims of retaliation under the ADA (§ 12203) are not listed,"
and thus concluded that the remedies available for such claims
are "limited to the remedies set forth in § 2000e(g)(1)." Id.
The Seventh Circuit's analysis makes it clear that § 1981(a)(1)
does not list § 12203 as a claim that permits recovery of
compensatory damages. However, "[n]o sound canon of
interpretation requires Congress to speak with extraordinary
clarity. . . ." Exxon Mobil Corp., 125 S. Ct. at 2620,
162 L. Ed. 2d 502. The statute must be read in conjunction with and "in
light of [the] context, structure, and related statutory
provisions." Id. In the Court's view, the omission of § 12203
in § 1981 is of no consequence when § 1981 is read in conjunction
with the relevant provisions of the ADA. As stated above, the
retaliation provision of the ADA contains no remedy of its own.
Rather, it is clear that the "remedies and procedures . . .
available to aggrieved persons" for violations of § 12203 are the same as the
"remedies and procedures available under" Title I of the ADA.
Id. Considering that the remedies available for retaliation
under the ADA are commensurate with those available under Title
I, it was unnecessary for Congress to separately mention
retaliation in § 1981. Thus, it is fair to assume that the
expansive effect of § 1981(a) applies equally to claims under
Title I as it does to retaliation claims by virtue of the fact
that the remedies available for retaliation claims incorporate,
and are coextensive with, the remedies available under Title I. .
Therefore, the Court finds that compensatory damages may be
awarded on claims of retaliation under the ADA as they are in
Title I. This conclusion is consistent with the "well settled"
rule that "where legal rights have been invaded, and a federal
statute provides for a general right to sue for such invasion,
federal courts may use any available remedy to make good the
wrong done." Barnes v. Gorman, 536 U.S. 181, 189,
122 S. Ct. 2097, 153 L. Ed. 2d 230 (2002) (quoting Bell v. Hood,
327 U.S. 678, 684, 90 L. Ed. 939, 66 S. Ct. 773 (1946)). "The purpose of
awarding damages in employment discrimination cases is to make
the victim `whole for injuries suffered on account of unlawful
employment discrimination.'" Greenway v. Buffalo Hilton Hotel,
143 F.3d 47, 54 (2d Cir. 1998) (quoting Albemarle Paper Co. v.
Moody, 422 U.S. 405, 418, 45 L. Ed. 2d 280, 95 S. Ct. 2362
(1975)). Case law makes clear that "[r]etaliation is, by
definition, an intentional act. It is a form of `discrimination'
because the complainant is being subjected to differential
treatment." Jackson v. Birmingham Bd. of Educ., 125 S. Ct. 1497, 1504, 161 L. Ed. 2d 361 (2005).
Accordingly, the Court finds that it is appropriate to allow
compensatory damages and a jury trial for retaliation claims
under the ADA.
For all the foregoing reasons, it is hereby
ORDERED, that the Defendant's motion for summary judgment
dismissing the Plaintiff's disability-based hostile work
environment claim is GRANTED; and it is further
ORDERED, that the Defendant's motion for summary judgment
dismissing the Plaintiff's retaliation claim is DENIED; and it is
ORDERED, that the Defendant's motion to strike the
Plaintiff's demand for compensatory damages and a jury trial is
DENIED; and it is further
ORDERED, that all parties are directed to appear for trial in
Courtroom 1020, Long Island Federal Courthouse, Central Islip,
New York on September 22, 2005 at 9:00 a.m.
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