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Brady v. Wal-Mart Stores

September 29, 2006


The opinion of the court was delivered by: James Orenstein, Magistrate Judge


Plaintiff Patrick S. Brady ("Brady") filed this discrimination action against his former employer, Wal-Mart Stores, Inc. ("Wal-Mart"), and two of their managers, Yem Hung Chin ("Chin") and James Bowen ("Bowen") alleging violations of the Americans with Disabilities Act ("ADA"), 29 U.S.C. § 12101, et seq. and the New York Human Rights Law ("NYHRL"), N.Y. Exec. Law § 290, et seq. Docket Entry ("DE") 33 (Amended Complaint). Following a trial, and on the basis of the jury's verdict, I directed the Clerk to enter judgment in favor of Brady jointly and severally against Wal-Mart and Chin in the amount of $2,500,000 and against Wal-Mart alone in the additional amount of $300,002. See DE 111. The jury did not find Bowen personally liable on any of Brady's claims, and I therefore dismissed with prejudice the charges against him. Wal-Mart and Chin now seek judgment in their favor as a matter of law pursuant to Federal Rule of Civil Procedure ("Rule") 50(b) as well as a new trial, or in the alternative for remittitur of compensatory damages, pursuant to Rule 59(a). Brady also seeks relief in the form of an application for costs, including attorneys' fees, pursuant to Rule 54(d). For the reasons set forth below, I now deny the Rule 50(b) motion, deny the Rule 59(a) motion provided Brady agrees to remittitur in the amount of $600,000 in compensatory damages, and award Brady $644,145.22 in costs including reasonable attorneys' fees.

I. Background

On August 6, 2003, Brady filed a complaint against Wal-Mart, Chin, and Bowen alleging several claims arising from his experience applying for, and subsequent employment in, the position of a part-time sales associate at the Wal-Mart store in Centereach, New York during the summer of 2002. Brady suffers from cerebral palsy, and all of his claims are related to his contention that Wal-Mart and its employees discriminated against him because he is disabled.

Specifically, Brady alleged that Wal-Mart violated the ADA during the application process by asking him prohibited questions before making a conditional offer of employment. He also contended that after he accepted Wal-Mart's offer to work in their pharmacy, the defendants further discriminated against him by subjecting him to two adverse employment actions: first by transferring him from his position as a sales associate in the pharmacy to an assignment collecting shopping carts in the store's parking lot, and then, after Brady protested the first transfer, by transferring him again to the store's food department and putting him on a work schedule that required him to work during hours in which, as he had previously informed Wal-Mart, he was unavailable. Brady complained of each transfer as a discriminatory act, and also alleged that Wal-Mart had subjected him to a hostile work environment and then constructively discharged him on the basis of his disability. Finally, Brady claimed that Wal-Mart failed to provide a reasonable accommodation for his disability and accused Chin and Bowen of participating in the conduct giving rise to his claims. The defendants denied engaging in any such discrimination, denied that Brady is disabled within the meaning of the pertinent federal statute, and denied that they believed or had reason to believe that Brady was disabled during the events in issue.

On February 14, 2005 the Honorable Leonard D. Wexler, United States District Judge, selected a jury to consider the case. Following that proceeding, all of the parties 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)(1) and Rule 73. DE 66. I then presided over the jury trial, which began on February 16, 2005, and concluded on February 23, 2005, when the jury returned its verdicts.

Several of the verdicts favored Brady. The jury found that Wal-Mart discriminated against Brady by subjecting him, on the basis of his disability, to one specific adverse employment action (the transfer from the pharmacy to the parking lot) and in general to a hostile work environment. The jury further found that Chin participated in these violations. In addition, the jury found that Wal-Mart failed to meet its obligation of offering Brady a reasonable accommodation. Finally, the jury found that Wal-Mart had violated the ADA with respect to one of the two pre-employment inquiries about which Brady complained; specifically, it found that a question on a form describing the job requirements of the position to which Brady had applied was unlawfully asked prior to Wal-Mart's conditional offer of employment. See generally DE 80 (Verdict Sheet) at 1-3.I directed the jury to make the latter finding based on my legal ruling that the inquiry would violate the ADA if made prior to the conditional job offer and on the parties' agreement that the record required the jury to find that timing element satisfied. See Transcript of Trial ("Tr.")986-88.

Although Brady prevailed on much of his complaint, the jury also made a number of findings that favored some or all of the defendants. The jury decided that Brady had failed to prove that Bowen participated in Wal-Mart's discrimination. It also found that Brady had failed to prove that Wal-Mart's pre-employment questioning about Brady's use of prescription medications was prohibited. The jury also did not find that transferring Brady from the parking lot to the food department was an adverse employment action, that Brady was constructively discharged, or that any of the defendants intentionally inflicted emotional distress upon Brady. See generally Verdict Sheet, at 2-4.

In assessing damages on the claims that it found Brady did prove, the jury awarded a total of $5,000,000 in punitive damages, $2,500,000 in compensatory damages for emotional pain and suffering, $9,114 for damages related to lost back pay, and nominal damages of one dollar apiece on the reasonable accommodation and job application process claims. See id. at 4, 6. On the basis of Wal-Mart's post-trial motion, I reduced the total award of punitive damages to $300,000 pursuant to 42 U.S.C. § 1981a and, with the parties' consent, allocated all of the $2,500,000 compensatory damage award to Brady's state law claims under the NYHRL. DE 111 at 9. I struck the jury's award of $9,114 for lost back pay because Brady did not prevail on his constructive termination claim. Id. at 10.

II. The Defendants' Rule 50 Motion

The defendants argue that they are entitled to judgment in their favor as a matter of law, notwithstanding the jury's verdicts, on a variety of grounds. First, they contend that although Brady was disabled within the meaning of the relevant state law, he did not fall within the ADA's definition of that term. Second, they assert that Wal-Mart's decision to transfer Brady from the pharmacy to the parking lot cannot be deemed to have been an adverse employment action. Third, they argue that the evidence before the jury was insufficient to support the verdict that Brady was subjected to a hostile work environment. Fourth, Wal-Mart claims that even if Brady was disabled, it was under no obligation to offer him any reasonable accommodation for his disability. Fifth, Wal-Mart denies that the ADA prohibited it from inquiring of Brady, before making him a conditional offer of employment, as to whether he could perform the job with or without a reasonable accommodation. Sixth, the defendants maintain that the evidence did not suffice to allow the jury to award punitive damages. See DE 120 at 3-4; see also DE 121 ("Rule 50 Memo.") at i.

To prevail on their motion for judgment as a matter of law as to any of the issues listed above, the defendants must show that "there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." Rule 50(a)(1). In deciding the motion, I "may consider all the record evidence, but in doing so ... must draw all reasonable inferences in favor of the non-moving party, and ... may not make credibility determinations or weigh the evidence." Cross v. New York City Transp. Auth., 417 F.3d 241, 247 (2d Cir. 2005) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)) (internal quotation marks omitted). Where, as here, a jury has deliberated and returned a verdict, the standard is high: there must be either "such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or ... such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against him." Cross, 417 F.3d at 248 (citing Song v. Ives Labs., 957 F.2d 1041, 1046 (2d Cir. 1992)) (internal quotation marks omitted). After addressing some threshold issues, I explain why, in my view, the defendants have failed to meet that heavy burden in any respect.

A. Preliminary Matters

As a threshold matter, Brady asserts that the defendants waived their Rule 50 motion by failing to renew it at the close of all the evidence. DE 130 ("Rule 50 Opp.") at 1. His procedural argument ignores the reality that the defendants made every appropriate effort to do so, and that the existence of any question in this regard is due entirely to my own improvident efforts to achieve efficiency. As a result, the pertinent law does not foreclose the defendants' renewal of the request for relief after a verdict pursuant to Rule 50(b).

There is no dispute that the defendants properly sought judgment as a matter of law at the close of plaintiff's case. Indeed, they did so in great detail. See Tr. 472-511. The issue arises because of the way I conducted the proceedings on the last day of testimony. Before the start of that day's proceedings, I had already conducted a lengthy charge conference with the parties during the preceding holiday weekend. See DE 105 (transcript of charge conference dated Feb. 21, 2005) ("Charge Tr."). At that conference, I had explicitly discussed the "renewed rule 50 application" with the parties, and it was clear to all that such a motion would be made. See Charge Tr. 68. When the trial reconvened the next day, which all concerned anticipated would be the final day of testimony, see Charge Tr. 159-60, I gathered the attorneys in chambers before the jury's arrival to address a variety of issues. After discussing some matters, including supplemental requests to charge the jury, I asked the attorneys if there were "[a]ny other housekeeping" matters to which I should attend. Tr. 746. Counsel for the defendants then initiated the following colloquy:

Mr. Finger: I would like to renew the other matters that I raised under [Rule 50(a)]. I assume you don't need me to raise them in any kind of detail.

The Court: No. Your [50(a)] motion is denied without prejudice to renewing it, if appropriate, after the verdict.

Tr. 747 (emphasis added). Following that colloquy, the parties presented brief testimony, and then proceeded to make their final arguments. There was no further discussion of a renewed motion under Rule 50.

I plainly erred in handling the matter when the defendants' counsel raised it at the start of the final day of trial. In retrospect, it is obvious that the attorney wished only to alert me that he would later renew his motion, but I incorrectly treated his statement as the motion itself. In denying that motion, I explicitly stated that the motion could again be renewed, "if appropriate, after the verdict." Id. I followed that statement with an observation that I wished to "get the jury in and move on." Tr. 749.

To the extent that the defendants' counsel did not once again ask me to enter judgment pursuant to Rule 50 during the very brief interval between the end of rebuttal testimony, Tr. 834, and the jury's return to hear final arguments, Tr. 835, the lapse was mine and not counsel's. Far from waiving the motion, the defendants' counsel raised it at virtually every opportunity, only to have me reject it without prejudice to later renewal. See Tr. 508, 744, 747; Charge Tr. 68-72. In response to the last such effort, I (erroneously) made it clear that I would not consider the motion again before the entry of a verdict. Tr. 747. There can be no question that the defendants' counsel made a more-than-reasonable effort to call my attention to the bases for the motion it now seeks to renew and did nothing to mislead Brady into holding back any rebuttal evidence. See Best Brands Beverage, Inc. v. Falstaff Brewing Corp., 842 F.2d 578, 587 & n.3 (2d Cir. 1987). The defendants have thus managed to preserve their right to make the instant motion notwithstanding my own error that needlessly muddied the record in that regard.

As a separate preliminary matter, the defendants have moved to strike the affirmation of Brady's lead counsel, DE 129 ("Wigdor Rule 50 Aff."), on the ground that it is not based on personal knowledge and constitutes an attempt to present argument that would otherwise be foreclosed by the page limitations on Brady's memorandum of law. DE 146. Because I have resolved the Rule 50 motion without consideration of the challenged affidavit, I deny the application as moot.

B. Evidence Of Disability

The defendants do not contest that Brady is afflicted with cerebral palsy, see Charge Tr. 48-52, but they do vigorously deny that he is "disabled" within the meaning of the ADA because, in their view, there was no evidence demonstrating that his medical condition substantially limited him in any major life activity. Rule 50 Memo. at 4. They further contend that they also did not "regard" Brady as disabled because he never mentioned his condition to Chin or anyone else at Wal-Mart and because his obvious limp was not sufficient to have caused them to infer that he was limited in any major life activity. Id. at 7. Brady disagrees on both counts -- he contends that there was ample evidence to support a jury finding both that he was disabled for purposes of the federal statute and that Wal-Mart viewed him as such, notwithstanding the care with which its witnesses avoided using the word "disabled" in their testimony. Rule 50 Opp. at 9, 12.*fn1

The ADA defines "disability" as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2). The first and third prongs of that definition are at issue here.

Determining whether an individual is disabled under subsection (2)(A) requires a three-step inquiry. See Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 641 (2d Cir. 1998) (citing Bragdon v. Abbott, 524 U.S. 624, 631-32 (1998)). First, the court must determine whether the individual suffers from a physical or mental impairment. Id. Second, it must determine "whether the life activity on which the individual relies amounts to a major life activity." Bartlett v. N.Y. State Board of Law Examiners, 226 F.3d 69, 79 (2d Cir. 1998) (citing Bragdon, 524 U.S. at 631) (internal quotation marks omitted). Third, the court must determine whether the individual's impairment substantially limits the major life activity previously identified. Id.

There is no dispute that Brady has met the first two requirements of the preceding definition. The defendants concede both that Brady had an impairment and that it affected a number of major life activities; the focus of the dispute is thus their contention that the evidence did not suffice to demonstrate that Brady's impairment substantiallylimited him with respect to an identified major life activity. See Rule 50 Memo. at 4-7.

In trying to define the contours of both "major life activity" and "substantial limitation," courts have looked for non-binding guidance to the regulations of the Equal Employment Opportunity Commission ("EEOC"). See Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 870 (2d Cir. 1998). Those regulations define major life activities as "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." Id. (stating that this list is illustrative and not limited to the enumerated activities) (citing 29 C.F.R. § 1630.2(i)). They further define "substantially limits" as being "[u]nable to perform a major life activity that the average person in the population can perform; or [as being] [s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity."

Id. (citing 29 C.F.R. § 1630.2(j)(1)). The regulations go on to advise that "[t]he nature and severity of the impairment[,] [t]he duration or expected duration of the impairment[,] and [t]he permanent or long term impact of or resulting from the impairment" should all be taken into consideration in determining whether an impairment substantially limits a major life activity. Id. (citing 29 C.F.R. § 1630.2(j)(2)). Finally, in addition to taking guidance from the EEOC regulations, courts have also recognized that the burden of demonstrating disability within the meaning of the ADA "is not necessarily an onerous one, and in fact, certain limitations will 'ordinarily' qualify as disabilities[.]" Bartlett, 226 F.3d at 80 (discussing the difficulty in demonstrating substantial limitation the court stated that) (citing Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 564-65 (1999)). I therefore examine the record to ensure that the jury had enough to conclude that Brady was disabled, without setting the bar higher than Congress intended.

Brady testified that his cerebral palsy affects the way I work and run. I have a limp that is very noticeable. It affects my speech. I speak slowly than people my own age [sic]. It affects my vision and my balance. I have had four separate operations on my eyes .... and three separate operations on my legs and feet. I had to use leg braces, hip braces, supports, orthotics.

Tr. 110.*fn2 It also limited his ability to read: Brady testified that he "had extended time to pass the school [sic]. And I got my test read to me." Tr. 111. Brady's mother similarly testified that while attending college "[h]e was allowed extra time to take his tests. He took them at a special services [sic]; he didn't take them at a classroom with the rest of his class. He was also allowed to tape his lectures." Tr. 351.

The evidence also showed that cerebral palsy took its toll on Brady's ability to work. His father testified that Brady "gets tired easily.... [h]e works slower. He has a tendency to ... trip or drag his feet." Tr. 328-29. Brady himself testified that his ability to drive was limited, that he "basically drove only local distances, because [he] really [doesn't] have a good sense of direction." Tr. 111.

Based on this evidence, and drawing all reasonable inferences in Brady's favor as required under Rule 50, I conclude that the jury could have easily found that Brady's impairment -- cerebral palsy -- substantially limits his ability to learn, walk, drive, and generally perform most of the functions commonly taken for granted in ordinary life. The jury could have found that Brady's condition is permanent and will not get better in the future or periodically subside to afford him temporary reprieve. See Ryan, 135 F.3d at 871 (finding that an impairment that became asymptomatic for long periods of time counseled against finding substantial limitation). The record also sufficed to allow the jury to find Brady permanently and substantially limited with respect to reading, see Tr. 111, 292, 351-52, which has been held to be a major life activity. See Bartlett, 226 F.3d at 80.

Specifically with respect to Brady's ability to work, the jury could easily have found that the mobility problems to which Brady and others testified -- with respect to both walking and driving -- amounted to a substantial limitation because they curtail the "geographical area" in which Brady can seek employment. See 29 C.F.R. § 1630.2(j)(3)(ii)(A). Such a finding would support a conclusion that Brady's impairment precludes him from a "broad range of jobs" compared to others who can easily commute to a job that is farther away. See Colwell, 158 F.3d at 643 (quoting 29 C.F.R. § 1630.2(j)(3)(i)).

The evidence was more than sufficient to support the jury's finding that Brady is disabled as defined in the first prong of the ADA definition; I therefore need not analyze in detail whether the record would also have supported a jury finding under the third prong that Wal-Mart "regarded" Brady as disabled, although I conclude that the proof was likewise sufficient.*fn3 I am therefore satisfied that the jury's finding that Brady was within the class of persons protected by the ADA was in no way the "result of sheer surmise and conjecture," Cross, 417 F.3d at 248 (quoting Song v. Ives Labs., 957 F.2d 1041, 1046 (2d Cir. 1992), and I therefore deny the corresponding portion of Wal-Mart's motion.

C. The Transfer To The Parking Lot

The defendants next seek to negate the jury's verdicts on both the federal and state disability claims on the ground that the evidence failed to establish that Wal-Mart's transfer of Brady from the pharmacy to the cart-pushing position in the parking lot constituted an adverse employment action. Rule 50 Memo. at 12. Specifically, Wal-Mart contends that the transfer could not be considered a "setback" to Brady's career because the action was temporary, and that it also could not be considered a "demotion" because Brady did not offer any evidence "to refute that the transfer was a lateral move." Id. at 13, 16. Brady argues that his transfer to the parking lot constituted an adverse employment action because it negatively affected the terms and conditions of his employment. Brady contends that the transfer was to a less prestigious position, that the place he was to perform his duties changed from indoors to outdoors, that the opportunity for advancement was materially different, and that at the time of the transfer he understood it to be permanent. Rule 50 Opp. at 18-21.

A plaintiff suffers an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment. To be materially adverse a change in working conditions must be more disruptive than a mere inconvenience or an alternation of job responsibilities [and it may] be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices ... unique to a particular situation.

Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (citations and internal quotation marks omitted).

A lateral transfer, or a change of employment that does not involve a demotion "in form or substance" does not constitute an adverse employment action. See Leget v. Henderson, 2001 WL 43615, at *5 (S.D.N.Y. Jan. 18, 2001) (finding transfer was not an adverse employment action because "temporary" transfer did not involve a loss of salary, benefits, responsibility or title). However, a lateral transfer that does not result in a loss of benefits or money may nonetheless constitute an adverse employment action "so long as the transfer alters the terms and conditions of the plaintiff's employment in a materially negative way." Patrolmen's Benevolent Ass'n of the City of New York v. City of New York., 310 F.3d 43, 51 (2d Cir. 2002); see also de la Cruz v. New York City Human Res. Admin. Dep't of Soc. Servs., 82 F.3d 16, 21 (2d Cir. 1996) (finding transfer to a "less prestigious" department with less opportunity for advancement constituted an adverse action).

Regardless of whether a transfer can be considered lateral rather than a demotion, an employment action may not be sufficiently adverse to support a cause of action if is "not a final employment decision, but an 'interlocutory or mediate decision.'" Almonte v. Coca-Cola Bottling Co. of N.Y., Inc., 959 F. Supp. 569, 572 (D. Conn. 1997) (citing Raley v. Bd. of St. Mary's Country Comm'rs, 752 F. Supp. 1272, 1278 (D. Md. 1990) (quoting Page v. Bolger, 645 F.2d 227, 233 (4th Cir. 1981))). In Page, the court reasoned that Title VII contemplates discrimination on what can be characterized as "ultimate employment decisions such as hiring, granting leave, discharging, promoting, and compensating." 645 F.2d at 233. "Mediate" actions, therefore, even if constituting an adverse employment action, may not lead to legally cognizable harm if by some subsequent action on the part of the employer, the employee is restored to his or her previous status. See Leget, 2001 WL 43615, at *6 (stating that a temporary adverse transfer followed by a complete restoration of employment status may not be actionable). For example, in Lumhoo v. Home Depot, 229 F. Supp.2d 121 (E.D.N.Y. 2002) the court found that an employee who was wrongfully terminated (and who remained unemployed for three weeks) but was subsequently reinstated to his former job with full back pay, benefits, seniority status, and all references to the discharge removed from his file, did not experience an adverse employment action. Id. at 139.*fn4

The evidence before the jury included testimony about differences between Brady's work in the pharmacy department and in the parking lot, both with respect to location (indoors for one, outdoors for the other), the prospects for advancement, and the relative prestige of each. The jury also had before it evidence of the brief time that Brady spent pushing carts before, as the result of complaints, he was transferred again to the food department, and of Wal-Mart's official position that all entry-level jobs are equal. See Tr. 176-77, 800-03. Against that evidentiary backdrop, I cannot say that the jury had to rely on conjecture to resolve against Wal-Mart the question whether Brady's first transfer was adverse.

Wal-Mart's argument that the transfer cannot be considered adverse because it was temporary has no support in the law or in the record. Brady's transfer to the parking lot was not a "mediate action" as was the plaintiff's termination in Lumhoo: Brady was not returned from the parking lot to his former position in the pharmacy, and there was no evidence at all, as there was in Lumhoo's case, that all references to the action of which Brady complained were removed from his employment file. Instead, after Brady was transferred to the parking lot from the pharmacy -- where he had relevant experience -- he was transferred to a position in a different department for which he had no relevant experience and received no training. Moreover, upon transferring Brady to the food department, Wal-Mart assigned him a work schedule that was incompatible with the hours Brady had previously said he was available. See Tr. 178-80. The jury could therefore easily have found, on the basis of the evidence before it, that the transfer was not temporary, despite Wal-Mart's argument about the short duration of Brady's tenure in the parking lot, and that it was therefore an adverse employment action.

Wal-Mart argues that Brady "presented no evidence to refute that the transfer [from the pharmacy] was a lateral move and not a demotion, and therefore not an adverse action." Rule 50 Memo. at 16 (emphasis added). For the reasons explained above, I conclude that the evidence in the record sufficed for a jury to conclude that Brady met his burden in establishing that the transfer to the parking lot was adverse within the meaning of Galabya. To the extent that Wal-Mart suggests that the law required Brady to do something more to refute an argument it made to the jury on the basis of the evidence, I disagree. Brady had only to establish the existence of an adverse employment action. See Islamic Soc. of Fire Dep't Pers. v. City of New York, 205 F. Supp.2d 75, 82 (E.D.N.Y. 2002). He was not required to do more.

D. Hostile Work Environment

Wal-Mart contends that the evidence did not suffice to support the jury's finding of a hostile work environment. The matter is moot: in seeking to prove his discrimination claim, Brady bore the burden of establishing either a specific adverse employment action or a hostile work environment. The jury found, on the basis of sufficient evidence, that Brady proved the former; as a result, even a legal finding that the evidence did not suffice with respect to the hostile environment claim would not undermine the outcome. I therefore need not and do not pass on this aspect of Wal-Mart's motion.

E. Reasonable Accommodation

A covered employer is liable under the ADA if it fails to "mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity." 42 U.S.C.A. § 12112(b)(5)(A). The jury found that Wal-Mart failed to make such a reasonable accommodation.

Wal-Mart argues that it is entitled to judgment as a matter of law on Brady's claim under the ADA that the company failed reasonably to accommodate his disability. Rule 50 Memo. at 22.*fn5 The company makes two distinct categories of arguments. First, it asserts that this court never had jurisdiction over the claim because Brady did not first raise it with the EEOC before filing his complaint in federal court. Second, it asserts it cannot be held to account for such a claim under the circumstances of this case because, as is undisputed, Brady never initiated an interactive process to seek a reasonable accommodation; in Wal-Mart's view, the circumstances did not create a duty on the company's part to initiate such process. Id. at 25. Moreover, even if it had a duty to initiate the interactive process, Wal-Mart contends that its failure to do so must be excused as a matter of law because the record is clear that Brady did not believe he needed any reasonable accommodation for his disability. Id. I address each in turn; as explained below, I find neither of these arguments persuasive. As a result, I deny this prong of Wal-Mart's motion and therefore preserve the jury's award of one dollar in nominal damages on the corresponding portion of Brady's complaint.

1. Jurisdiction

Before Brady could sue Wal-Mart in federal court for violations of the ADA, he was required to exhaust his administrative remedies by filing a complaint with the EEOC and obtaining a 'right-to-sue' letter. See Shah v. New York State Dep't of Civil Serv., 168 F.3d 610, 613 (2d Cir. 1999). As a general matter, once the right-to-sue letter has issued, the federal court may exercise jurisdiction over the complaint, but only as to issues that the plaintiff raised in his complaint to the EEOC. Id. Nevertheless, a plaintiff may include additional claims in his district court complaint "if they are 'reasonably related' to those that were filed with the agency." Id. at 614.

Brady contends that his reasonable accommodation claim is permitted under the latter rule. In assessing such an argument, a court will "look not merely to the four corners of the often inarticulately framed charge, but take into account the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Gomes v. Avco Corp., 964 F.2d 1330, 1334 (2d Cir. 1992) (internal quotation marks omitted); see also Miller v. Int'l Tel. and Tel. Corp., 755 F.2d 20, 23-24 (2d Cir. 1985); Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 82-83 (2d Cir. 2001).

When Brady complained to the EEOC, he outlined in detail the essential facts of his employment at Wal-Mart. See Rule 50 Memo., App. 1 ("EEOC Charge"). Those factual allegations are the same ones upon which Brady relied to establish his reasonable accommodation claim. However, as Wal-Mart notes, Brady did not specifically complain to the EEOC that he was denied a reasonable accommodation; in fact, he affirmatively told the agency that he "was fully qualified to perform the job, with or without reasonable accommodation." EEOC Charge ¶ 4.

That latter assertion is not inconsistent with Brady's reasonable accommodation claim. The crux of Brady's complaint is that although he believed himself to be fully capable of performing his duties in the pharmacy without assistance, Wal-Mart assumed that he could not do so by reason of his disability and then transferred him out of that department on the basis of its assumption without giving him an opportunity to meet its concerns through resort to a reasonable accommodation. Under these circumstances, the reasonable accommodation theory that Brady pursued in this court is sufficiently related to the complaint he raised with the EEOC. See Gomes, 964 F.2d at 1334; Holtz, 258 F.3d at 82.

The cases on which Wal-Mart relies for the proposition that "claims of failure to accommodate are not reasonably related to claims of discriminatory termination or transfer," Rule 50 Memo. at 23, are easily distinguishable. First, in Green v. Nat'l Steel Corp., 197 F.3d 894 (7th Cir. 1997), the defendant company claimed to have fired the plaintiff, after a well-documented investigation, on the ground that she had tampered with her employment records so as to make herself appear eligible for better vacation and retirement benefits than she was actually entitled. Id. at 896. Green initially fought that action by resort to a union grievance procedure in which she included no claim of disability discrimination. Id. at 897. She did not prevail, and the union declined to take the case to arbitration. At that point, Green filed a charge with the EEOC in which she claimed to have been fired on the basis of her disability. Id. Only after the agency issued a right-to-sue letter did Green, for the first time in her federal court complaint, allege that her employer had failed to provide a reasonable accommodation for her disability by not providing her a "suitable desk chair" or "the appropriate dimmer lighting" she required, and by not allowing her to continue parking in the handicapped parking spaces. Id. at 898. Under those circumstances, the appellate court upheld the order granting summary judgment in favor of the employer because it could not "understand how [Green] could expect her claim that she suffered from inadequate working conditions would develop from the investigation of the reasons for her discharge" -- i.e., her alleged tampering with the company's files. Id.

The plaintiff in Green did not present facts to the EEOC that would lead it to realize that one of the legal labels that could be placed on her complaint was a failure to provide a reasonable accommodation. In contrast, Brady's reasonable accommodation claim is based on the same facts that he included in his EEOC charge. For example, Brady complained to the EEOC that Wal-Mart's "head pharmacist had said that [he] was not 'fit for the job'" and that she agreed to put Brady back in the pharmacy, but warned that the company would be "responsible if we get sued because he gives customers the wrong prescriptions." EEOC Charge ¶ 12. Brady also included in his complaint to the EEOC a charge that that Wal-Mart discriminated against him because it "perceived" him as disabled. Id. at ¶ 15. Those allegations are plainly related to the theory on which Brady predicated his reasonable accommodation claim.

The other case on which Wal-Mart relies in this regard is Chatoff v. West Publ'g Co., 948 F. Supp. 176 (E.D.N.Y. 1996). Chatoff claimed that he was not promoted because he was deaf and that the "only qualitative difference between himself and those promoted over him ... was the ability to use the telephone." Id. at 178. He first complained to the relevant regulatory agency (which in that case was the Office of Federal Contract Compliance Programs, rather than the EEOC) that his employer had not promoted any disabled individuals in violation of a contract requiring it to promote qualified disabled persons; his complaint did not mention any failure to accommodate. Id. The agency investigated the matter and found that Chatoff had "not been successful" on some work projects and "was not qualified" for a specific promotion." Id. The Department of Labor reviewed the agency decision and upheld it. When Chatoff later sought to include a reasonable accommodation claim in his federal court complaint, the court dismissed it on the ground that "conclusory or vague allegations before an administrative agency may not predicate widely disparate claims brought subsequently before federal courts[.]" Id. at 179.

Like the plaintiff in Green, Chatoff not only switched legal theories in pursuing a reasonable accommodation claim, he also necessarily relied on facts that the administrative agency had no occasion to investigate. Not so with Brady: although he did not specifically ask the EEOC to grant him relief on the basis of a reasonable accommodation theory, he did present the factual allegations upon which he now relies to support such a theory. I find that this court has jurisdiction over the reasonable accommodation claim.

2. The Interactive Process

Under the ADA's regulatory scheme, employers and employees are supposed to engage in an "interactive process" to determine whether it is feasible to provide an accommodation for an employee's disability. See Jackan v. New York State Dep't of Labor, 205 F.3d 562, 566 (2d Cir. 2000). In general, "the initial burden of requesting an accommodation is on the employee and it is only after such a request has been made that the employer must engage in the 'interactive process' of finding a suitable accommodation." Felix v. New York City Transit Auth., 154 F. Supp.2d 640, 656-57 (S.D.N.Y. 2001); see also 29 C.F.R. pt. 1630 App. § 1630.9 (stating that "it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed").

The purpose of the notice requirement, and of requiring the disabled employee to initiate the interactive process, is to protect an employer from a claim of discrimination by an employee whom it did not know to be hampered by a disability. Felix, 154 F. Supp.2d at 657. That rationale disappears, however -- and with it, the employee's exclusive responsibility to initiate the interactive process -- "where the disability is obvious or otherwise known to the employer without notice from the employee." Id. Thus, where "an employer has independent knowledge of an employee's disability," id., "it may be necessary for the covered entity [i.e., the employer] to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation." 29 C.F.R. § 1630.2(o)(3).

Wal-Mart argues that its failure to engage in the interactive process, without more, cannot support a finding of liability. See Rule 50 Memo. at 25 (citing EEOC v. Yellow Freight Sys., 2002 WL 31011859, at *24 (S.D.N.Y. Sept. 9, 2002)). The statement is accurate as far as it goes, but inapposite precisely because Brady does not rely on the absence of an interactive process alone. Rather, he relies on the presence of an additional fact that warrants an exception to the general rule: Wal-Mart's knowledge of his disability, which he believes he proved by a preponderance of the evidence. To be sure, Wal-Mart presented testimony that Chin did not think that Brady had cerebral palsy, Tr. 541; if it credited that testimony, the jury might well have rejected Brady's reasonable accommodation claim on the ground that Wal-Mart had no knowledge of Brady's disability and therefore no duty to initiate the interactive process. On the other hand, the jury also heard evidence that Chin thought Brady was unable to perform his duties in the pharmacy to an extent greater than she had ever encountered before. Tr. 597. To the extent the jury believed not only that Brady was disabled but that he appeared so to Chin, notwithstanding her denial, it could rationally have concluded that there was a factual predicate for Wal-Mart to have the responsibility to initiate the interactive process to explore the possibility of a reasonable accommodation before relegating Brady to the parking lot.

Finally, I reject Wal-Mart's argument that any interactive process would have been futile because Brady did not believe he needed an accommodation. The record shows no more than that Brady did not believe he needed an accommodation up to the point where Wal-Mart made a unilateral decision to remove him from the pharmacy. It would be pure speculation to assume that he would have taken the same position if Wal-Mart had expressed a concern to him that his disability rendered him less successful in the pharmacy than the company required him to be and had discussed ways to remedy the problem that it alone perceived.

F. The Pre-Employment Inquiry

There is no dispute that before it made a conditional offer of employment to Brady, Wal-Mart provided him with a description of the job for which he had applied and asked whether he could perform all of the essential functions it listed with or without a reasonable accommodation. Wal-Mart contends that its inquiry was permissible, and that it is therefore entitled to judgment in its favor on the cause of action based on that inquiry. Rule 50 Memo. at 29-32. Brady disagrees on the ground that the inquiry was overbroad and therefore "likely to elicit information revealing an applicant's disability," in violation of the ADA. Rule 50 Opp. at 29. As explained below, I adhere to the ruling I made at the trial; as a result, I deny this prong of Wal-Mart's motion and therefore preserve the jury's award of one dollar in nominal damages on the corresponding portion of Brady's complaint.

To protect disabled job applicants from being unfairly judged on the basis of a disability, the EEOC regulates the questions an employer may ask before extending a conditional job offer, as well as the standards by which such an employer may determine a candidate's qualifications. One of the regulations pertinent to the instant dispute explicitly permits an employer, prior to making a job offer, to inquire "into the ability of an applicant to perform job-related functions[.]"

29 C.F.R. § 1630.14(a) (cited in Rule 50 Memo. at 29). However, as a general matter, It is unlawful for a covered entity to use qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities, on the basis of disability, unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity.

29 C.F.R. § 1630.10. The EEOC has explained that this regulation is meant to ensure that there is a fit between job criteria and an applicant's (or employee's) actual ability to do the job. Accordingly, job criteria that even unintentionally screen out, or tend to screen out, an individual with a disability or a class of individuals with a disability because of their disability may not be used unless the employer demonstrates that the criteria, as used by the employer, are job-related to the position to which they are being applied and are consistent with business necessity.

29 C.F.R. Pt. 1630, App. § 1630.10.

The crux of the dispute on this point is thus whether Wal-Mart's inquiry of Brady asked about his ability to perform functions that were actually related to the job for which he was applying. And at the heart of that question is whether the following "essential function" that Wal-Mart listed in the job description it provided to Brady was indeed something he might be expected to do in the job for which he was applying: "Frequently pick up, lift, carry, and place items of varying sizes, weighing up to and greater than 50 pounds, while moving up and down a ladder." DE 131 ("Wigdor Rule 59 Aff."), Ex. 2.

"The inquiry into whether a particular function is essential initially focuses on whether the employer actually requires employees in the position to perform the functions that the employer asserts are essential." 29 C.F.R. Pt. 1630, App. § 1630.2(n). It is an inquiry, moreover, "that must be made on a case by case basis." Id. at 354. The facts of this case easily supported -- and indeed required, as I explain below in connection with Wal-Mart's Rule 59 motion -- a determination that the function at issue was not essential to Brady's job, and that it therefore impermissibly tended to screen out a class of individuals whose disabilities would make it difficult to perform the task so described even with a reasonable accommodation.

Wal-Mart employee Joan Little, like Brady, worked as an associate in the pharmacy department. When asked at trial whether she frequently had to "pick up items weighing over 50 pounds while going up a ladder," she responded, "Not usually." Tr. 404. Defendant Chin was asked the same question and indicated that she told Brady that he might be expected to unload a pallet or lift boxes; but she also said, "Usually in the pharmacy area we don't have things over 50 pounds. It is kind of rare." Tr. 429.

Wal-Mart does not point to any evidence before the jury that would support the proposition that lifting objects over 50 pounds while climbing a ladder was an essential function of the job for which Brady was hired. Instead, it argues that the question it asked of Brady was permissible because it did not "seek medically related information or inquire as to whether a person is disabled." Rule 50 Memo. at 30. The argument misses the point: the task of carrying heavy loads up and down a ladder was either an essential part of Brady's job or it was not. If it was not -- and there seems to be no dispute that the evidence supported such a finding -- then it did not fall within the safe-harbor provisions of the EEOC's regulations.

The question thus becomes whether asking a job candidate about his ability to perform such a task with or without a reasonable accommodation, given its irrelevance to the job for which the candidate is applying, can tend to screen out disabled individuals. To my mind, the answer is obviously yes. It is quite plain that there exists a class of persons who, due to physical disability, cannot frequently carry a items weighing more than 50 pounds up and down a ladder even with a reasonable accommodation.*fn6 Asking the question at issue here despite its actual irrelevance to the job for which Brady was being considered, therefore supported an inference that Wal-Mart's purpose was to screen out that class of individuals for a reason other than the one permitted by law. Accordingly, Wal-Mart is not entitled to judgment on this issue.

G. Punitive Damages

Wal-Mart moves to strike the jury's award of punitive damages -- which I have since reduced to $300,000 and allocated entirely to Brady's claim of discrimination under the ADA -- on the ground that it was supported by "no evidence" sufficient to show that it consciously discriminated against Brady on the basis of his disability. Rule 50 Memo. at 32. Brady responds that the jury's award of punitive damages was indeed supported by ample evidence that Wal-Mart acted recklessly and was clearly aware of its obligations under the ADA. Rule 50 Opp. at 31-32. I agree with Brady on this point.

Federal law permits an award of punitive damages under the circumstances of this case if Brady proved that Wal-Mart "engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to [Brady's] federally protected rights[.]" 42 U.S.C. § 1981a(b)(1). The law permitted Brady to meet that burden by proving that Wal-Mart had knowledge that it "may be acting in violation of federal law" -- it did not require him to demonstrate Wal-Mart had a contemporaneous "awareness that it [was] engaging in discrimination." Weissman v. Dawn Joy Fashions, Inc., 214 F.3d 224, 235 (2d Cir. 2000) (quoting Kolstad v. American Dental Ass'n, 527 U.S. 526, 535 (1999) (internal quotation marks omitted)). Stated another way, in order to support an award of punitive damages, Brady had an obligation to prove only that Wal-Mart "discriminate[d] in the face of a perceived risk that its actions [would] violate federal law[.]" Id. at 536.

I assess the evidence before the jury, as I must, against this legal standard and in the light most favorable to Brady. Doing so compels me to find there was a sufficient basis for the jury to award punitive damages. In finding that Brady proved his claim of discrimination, the jury necessarily found that Wal-Mart and Chin subjected Brady to an adverse employment action on the basis of his disability. Viewed through that prism, the actions that the defendants took to make things appear otherwise can easily support an inference that the discrimination was done in willful disregard of the law.

For example, a jury that did not find Brady's transfer to the parking lot to be the result of discriminatory animus might find nothing untoward in his subsequent transfer to the food department. But the jury having found that such animus did motivate the first transfer, it might also reasonably concluded that the later transfer -- although not an adverse action in light of the fact that it actually improved Brady's work conditions as compared to his duties in the parking lot -- was intended to make continued employment an unattractive option for Brady, while avoiding the overt action of firing him that would be a more obvious sign of discrimination.*fn7 Likewise, once the jury found the existence of discriminatory animus, it could rationally have viewed as particularly egregious the attempt by Wal-Mart's employees to avert that finding through repeated denials of even knowing that Brady was disabled. Moreover, with the Consent Decree in evidence -- the propriety of which I address below in Part III.A.1 -- the jury was entirely justified in concluding that Wal-Mart had reason to know of its obligations under the ADA and could only have discriminated against Brady as the result of reckless or willful disregard of the law's requirements.

In arguing to the contrary, Wal-Mart relies heavily on Chin's testimony to the effect that she was not aware that Brady was disabled, that she did not know where he would be transferred, and that she explored the possibility of finding Brady a new position rather than firing him. Rule 50 Memo. at 32. Wal-Mart also relies on the fact that at the time of the events in issue, August 2002, it did not yet have an obligation under a consent decree in an earlier case, a redacted copy of which I had admitted in evidence, to provide training to employees such as Chin to comply with the ADA. Id.; see also Wigdor Rule 59 Aff., Ex. 4 (redacted copy of consent decree in EEOC v. Wal-Mart Stores, Inc., No. S99 Civ 0414 (E.D. Ca. Dec. 17, 2001) (the "Consent Decree")).

Wal-Mart's arguments are unavailing. First, to the extent it relies on the self-serving aspects of Chin's testimony -- or, perhaps more precisely, the portions of Chin's testimony that served her employer's interest in disclaiming any corporate awareness of Brady's disability -- it ignores my obligation to view the record in the light most favorable to the non-movant. The record was more than sufficient for the jury to find that Brady's disability was obvious to Chin and was indeed the reason she did not want Brady working with her in the pharmacy.

Second, the nature of Wal-Mart's argument with respect to the Consent Decree virtually proves Brady's point. The decree set forth obligations that Wal-Mart agreed to undertake as part of the settlement of a separate case. One of those obligations was to comply with the ADA, another was to institute -- within one year of the date of the decree, no later than December 17, 2002 -- a training program for its employees that would guard against discrimination in the future.

See Consent Decree ¶ 63. At the time of Brady's brief employment at the Centereach store, the deadline for Wal-Mart to establish its training program pursuant to the Consent Decree had not yet elapsed, but it nevertheless had a legally binding obligation to comply with the ADA, and it was on notice that it needed better training of its employees to ensure such compliance. Wal-Mart appears to argue that during the year between the date of the Consent Decree and its anniversary, it was free to disregard the risk that the supervisory employees who would later be trained might discriminate against people like Brady. That may be an accurate statement of WalMart's obligations under the decree itself, but it is not an accurate statement of its potential liability for punitive damages for violating the ADA -- to the contrary, it is an argument that smacks of the precise kind of recklessness that Wal-Mart claims Brady was unable to prove.*fn8

The record sufficed to allow the jury to award punitive damages to Brady. I therefore deny Wal-Mart's motion for judgment on that issue.

III. The Defendants' Rule 59 Motion

The defendants assert several bases on which they claim to be entitled to a new trial.

They contend that I wrongly admitted unfairly prejudicial evidence, including the Consent Decree and a letter written by Brady's father; that I erred in instructing the jury on a variety of matters; and that the jury's awards of compensatory and punitive damages were against the weight of evidence. See generally DE 122.

The standard for granting a new trial under Rule 59(a) is "less stringent" than the standard for relief under Rule 50 in two "significant respects: (1) a new trial under Rule 59(a) 'may be granted even if there is substantial evidence supporting the jury's verdict,' and (2) 'a trial judge is free to weigh the evidence himself, and need not view it in the light most favorable to the verdict winner.'" Manley v. Ambase Corp., 337 F.3d 237, 244-45 (2d Cir. 2003) (quoting DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 133-34 (2d Cir. 1998)). But while the standard is more relaxed, "for a district court to order a new trial under Rule 59(a), it must conclude that '"the jury has reached a seriously erroneous result or ... the verdict is a miscarriage of justice,"' i.e., it must view the jury's verdict as 'against the weight of the evidence.'" Id. (quoting DLC Mgmt. Corp., 163 F.3d at 133 (quoting Song v. Ives Labs., Inc., 957 F.2d 1041, 1047 (2d Cir. 1992) (internal citations omitted))); see also United States v. Landau, 155 F.3d 93, 104 (2d Cir. 1998) (holding that a "trial judge may overturn a jury's verdict, even where there is 'substantial evidence' to support it"). Moreover, "[w]here the resolution of the issues depend[s] on [an] assessment of the credibility of the witnesses, it is proper for the court to refrain from setting aside the verdict and granting a new trial." Metromedia Co. v. Fugazy, 983 F.2d 350, 363 (2d Cir. 1992). I apply these principles in addressing in turn each prong of the defendants' motion for a new trial.

A. Evidentiary Rulings

1. The Consent Decree

The defendants claim to have been unfairly prejudiced in two ways by the admission of portions of the Consent Decree. First, they argue that I erred in admitting the evidence at all. Second, they contend that I compounded the error by allowing Brady to use the evidence for purposes that exceeded the limits I originally set when I admitted it. DE 122 at 2. I am persuaded by neither assertion.

The Consent Decree recites a variety of obligations that Wal-Mart voluntarily undertook before Brady was hired. It did so as part of the settlement of a separate case in which it did not admit liability. Wal-Mart's obligations under the Consent Decree included a commitment to non-discrimination in hiring disabled persons, conforming hiring procedures with ADA requirements, instituting an ADA training program for its personnel within one year (which had not yet elapsed at the time Wal-Mart hired Brady), and disseminating the company's ADA compliance policy to its various stores.

I admitted the Consent Decree for the limited purpose of showing that Wal-Mart was aware of its obligations under the ADA; I did not admit it for purposes of showing that Wal-Mart was a poor corporate citizen, or that it had previously violated the ADA. I sought to limit its use to its permissible purpose by requiring Brady to redact irrelevant or prejudicial portions and instructing counsel not to argue that Wal-Mart previously violated the ADA. Tr. 21-22. I adhered to that limitation in later instructing the jury that "the only fact that [it] should take into consideration about the fact that there is a Consent Decree being referred to is that Wal-Mart undertook certain obligations." Tr. 421.

The defendants argue that my admission of the Consent Decree was incompatible with both Rule 404(b) and Rule 408 of the Federal Rules of Evidence. I disagree on both counts. Rule 404(b) forbids the admission of "[e]vidence of other crimes, wrongs, or acts ... to prove the character of a person in order to show action in conformity therewith." The rule does permit the admission of such evidence for other purposes, including proof of knowledge and intent. My decision to admit the Consent Decree was entirely consistent with the latter provision. Similarly, while Rule 408 generally prohibits the admission of settlement-related statements "to prove liability for" a claim, it explicitly notes that the proscription does not apply "when the evidence is offered for another purpose" -- as it was here. See Starter Corp. v. Converse, Inc., 170 F.3d 286, 293 (2d Cir. 1999) (trial judge has broad discretion to admit evidence under Rule 408 when offered for "another purpose") (citation omitted); United States v. Gilbert, 668 F.2d 94, 97 (2d Cir. 1981) (holding that a consent decree was properly admitted for the purpose of showing that defendant was aware of reporting requirements).

To the extent the defendants' concern about the Consent Decree is not its admission alone, but rather the contention that Brady used it for impermissible purposes, they have only themselves to blame. The defendants cite four instances, all of them in Brady's closing argument, in which he argued that Wal-Mart's failure to comply with a provision of the Consent Decree was itself a violation of the ADA. DE 123 ("Rule 59 Memo.") at 4. First, they cite counsel's argument about the inquiry into Brady's ability to carry heavy objects up and down a ladder: "not only is it a violation of the Americans with Disabilities Act, but is a violation of a federal court order. It is a violation of the nationwide Consent Decree." Tr. 920. Second, in discussing a claim -- which the jury ultimately rejected -- that Wal-Mart violated the ADA by subjecting Brady to a drug test before offering him a job, Brady's counsel argued, "it is important because they violated the Americans with Disabilities Act. They violated a federal court order. They violated a Consent Decree." Tr. 926. Third, in addressing the issue of punitive damages, Brady's counsel described the Consent Decree as "the icing on the cake. This is it. Do I need it? No. This is further evidence of discrimination, and this is further reason why you folks need to punish Wal- Mart ... to let them know they can't violate the Americans with Disabilities Act." Tr. 948. Finally, and again on the subject of punitive damages, Brady's counsel again argued, "Look at the violation of a federal court order, a nationwide Consent Decree .... You have the power to make sure that Wal-Mart complies with the [ADA]. You have the power to make sure that Wal-Mart complies with the Consent Decree. A federal court order couldn't do it. You can." Tr. 963-64.

The defendants' complaints about these portions of Brady's summation are unavailing because the statements they cite all occurred after their own counsel affirmatively, and in violation of the limitation I had imposed, first argued that Wal-Mart had not violated the Consent Decree.

The defendants gave their summation first. Notwithstanding the limitations I had imposed on the parties in using the Consent Decree, and notwithstanding the explicit instruction I had already given the jury about that limitation, the defendants' counsel argued that the evidence showed that Wal-Mart had indeed complied with the Consent Decree, and that ...

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