55 F.3d 1276 (7th Cir. 1995), 93-3839, United States E.E.O.C. v. AIC Sec. Investigations, Ltd.

Docket Nº:93-3839, 94-1018, 94-2895 and 94-3089.
Citation:55 F.3d 1276
Party Name:2746, 32 Fed.R.Serv.3d 61, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, and Randall Wessel, as personal representative of Charles Wessel, Plaintiff-Appellee, Cross-Appellant, v. AIC SECURITY INVESTIGATIONS, LTD., and Ruth Vrdolyak, Defendants-Appellants, Cross-Appellees.
Case Date:May 22, 1995
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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55 F.3d 1276 (7th Cir. 1995)

2746, 32 Fed.R.Serv.3d 61,



Randall Wessel, as personal representative of Charles

Wessel, Plaintiff-Appellee, Cross-Appellant,



Defendants-Appellants, Cross-Appellees.

Nos. 93-3839, 94-1018, 94-2895 and 94-3089.

United States Court of Appeals, Seventh Circuit

May 22, 1995

Argued Feb. 7, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied June 28, 1995.

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[Copyrighted Material Omitted]

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Gail S. Coleman (argued), Gwendolyn Young Reams, Carolyn L. Wheeler, James R. Neely, Jr., E.E.O.C., Robert E. Williams, Douglas S. McDowell, McGuiness & Williams, Washington, DC, for E.E.O.C.

Deborah M. Regan, Edward M. Glennon (argued), David A. Allgeyer, Theresa M. Herzog, Lindquist & Vennum, Minneapolis, MN, for Randall Wessel.

William J. Harte (argued), William T. Rodeghier, Chicago, IL, Charles W. Pautsch, James B. Sherman, Frank A. Gumina, Brian A. Price, Wessels & Pautsch, Milwaukee, WI, Joan M. Mannix, Harte & Associates, Chicago, IL, for AIC Security Investigations, Ltd., Ruth Vrdolyak.

Before BAUER, COFFEY, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Charles Wessel died of brain and lung cancer. While he was ill, his supervisor fired him. Before he died, the Equal Employment Opportunity Commission (EEOC) and Wessel sued his employer and his supervisor, charging that they had violated the Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12111 et seq. A jury found for the EEOC and Wessel and awarded Wessel $572,000 in back pay, compensatory damages, and punitive damages. This multi-faceted appeal requires us to examine issues ranging from individual liability under the ADA to the district court's evidentiary admissions to the

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proper award of attorney's fees. We affirm in part and reverse in part.

I. Background

AIC Security Investigations, Ltd., (AIC), provided security guards for residential and commercial property in the Chicago area. It employed about 300 people. AIC was a wholly-owned subsidiary of AIC International, Ltd., which was owned and run for many years by Victor Vrdolyak. In 1986, Victor Vrdolyak hired Charles Wessel as executive director of AIC, at that time the top management position.

In June 1987, Wessel learned he had lung cancer. Over the following five years he underwent a series of surgeries and treatments, including radiation and chemotherapy. In April 1992, Wessel was diagnosed with inoperable metastatic brain cancer, a terminal illness. Between 1987 and 1992, Wessel suffered a variety of effects from his cancer and treatment, including shortness of breath from having parts of his lungs removed, nausea from radiation and chemotherapy, and somewhat reduced memory capacity due to the effects of brain tumors. He missed work at times, but he continued his employment essentially full-time.

In July 1992, Victor Vrdolyak's wife, Ruth Vrdolyak (the Vrdolyak of this case), took over ownership as sole shareholder of AIC and AIC International, following the death of her husband. She also began operating AIC on a day-to-day basis. Vrdolyak knew that Wessel was ill, and, on July 29, 1992, she fired him.

Wessel filed a complaint with the EEOC. On November 5, 1992, the EEOC sued AIC and Ruth Vrdolyak, alleging violation of the ADA; Wessel intervened as a plaintiff. After a nine-day trial, a jury found that AIC and Vrdolyak had violated the ADA. The jury awarded $22,000 in back pay, $50,000 in compensatory damages, $250,000 in punitive damages against AIC, and $250,000 in punitive damages against Vrdolyak.

Post-trial motions hammered out the final disposition of the case. The district court granted injunctive relief against AIC, ordering a variety of measures to prevent future discrimination. The district court ordered AIC to pay the $22,000 back pay award, plus interest, and the court further ruled that AIC and Vrdolyak were jointly and severally liable for the $50,000 in compensatory damages.

As to the punitive damages, the court noted that 42 U.S.C. Sec. 1981a(b) caps at $200,000 the total amount of compensatory and punitive damages that can be awarded in favor of one plaintiff against a defendant of AIC's size, although the statute forbids the court to inform the jury of that limit. In addition, the district court found that $250,000 per defendant in punitive damages was excessive. For these two reasons, the district court reduced the total award of punitive damages to $75,000 each for Vrdolyak and AIC, thus placing the total award at the maximum amount allowable, $200,000. The district court made AIC and Vrdolyak severally liable for their shares of the punitive damages.

II. Analysis

  1. Vrdolyak's Liability As an Individual

    Vrdolyak argues that, as an individual, she cannot be sued under the ADA. Vrdolyak made this same argument to the district court, which rejected it, siding instead with the EEOC's and Wessel's opposite interpretation of the statute. However, we join analogous decisions of our sister Circuits in holding that individuals who do not independently meet the ADA's definition of "employer" cannot be held liable under the ADA. This is a pure question of law; we review the district court's disposition of it de novo. Pilditch v. Board of Educ., 3 F.3d 1113, 1115 (7th Cir.1993).

    The ADA forbids discrimination by any "covered entity," defined as "an employer, employment agency, labor organization, or joint labor-management committee." 42 U.S.C. Secs. 12112(a); 12111(2). "Employer" is "a person engaged in an industry affecting commerce who has 15 or more employees ... and any agent of such person." 42 U.S.C. Sec. 12111(5)(A).

    The ADA's definition of "employer" mirrors the definitions of "employer" in Title VII of the Civil Rights Act of 1964 and in the

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    Age Discrimination in Employment Act (ADEA). 1 See 42 U.S.C. Sec. 2000e(b); 29 U.S.C. Sec. 630(b). Courts routinely apply arguments regarding individual liability to all three statutes interchangeably. Therefore, we will use other courts' interpretations of Title VII and the ADEA to help us in our decision. See Miller v. Maxwell's Int'l Inc., 991 F.2d 583, 587 (9th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 1049, 127 L.Ed.2d 372 (1994); Jendusa v. Cancer Treatment Centers of America, Inc., 868 F.Supp. 1006, 1008 n. 2 (N.D.Ill.1994); see also DeLuca v. Winer Industries, Inc., 53 F.3d 793 (7th Cir.1995) (approving use in the ADA context of burden-shifting method of proof developed under Title VII and the ADEA).

    Numerous district court decisions in this Circuit have addressed the question of individual liability under the ADA, Title VII, and the ADEA. 2 Compare Hudson v. Soft Sheen Products, Inc., 873 F.Supp. 132 (N.D.Ill.1995) (rejecting individual liability under Title VII) and Johnson v. Northern Indiana Public Serv. Co., 844 F.Supp. 466 (N.D.Ind.1994) (same) with Jendusa, 868 F.Supp. 1006 (recognizing individual liability under the ADA) and Vakharia v. Swedish Covenant Hosp., 824 F.Supp. 769 (N.D.Ill.1993) (recognizing individual liability under Title VII and the ADEA). We, however, have not ruled on the issue. 3

    While no Circuit has directly confronted the question of individual liability under the ADA, five Circuits have explicitly addressed individual liability under Title VII and the ADEA. Four have rejected individual liability. Smith v. Lomax, 45 F.3d 402, 403-04 & n. 4 (11th Cir.1995) (Title VII and ADEA); Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510 (4th Cir.) (ADEA), cert. denied, --- U.S. ----, 115 S.Ct. 666, 130 L.Ed.2d 600 (1994); Grant v. Lone Star Co., 21 F.3d 649, 651-53 (5th Cir.) (Title VII), cert. denied, --- U.S. ----, 115 S.Ct. 574, 130 L.Ed.2d 491 (1994); Miller, 991 F.2d at 587-88 (Title VII and ADEA); see also Lenhardt v. Basic Inst. of Tech., 55 F.3d 377 (8th Cir.1995) (holding that no individual liability exists under Missouri statute similar to the ADA). 4 One Circuit has recognized individual liability. Jones v. Continental Corp., 789 F.2d 1225, 1231 (6th Cir.1986) (recognizing in passing individual liability under Title VII). As we

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    detail below, we find the more recent and more detailed decisions persuasive.

    The EEOC and Wessel, fighting against the weight of authority, rely primarily on their own "plain language" interpretation of the ADA's definition of "employer." They argue that because "employer" is defined to include "a person ... and any agent of such person," and Vrdolyak as president of AIC is an agent of AIC, she must be liable. While this reading has some surface appeal, Miller, 991 F.2d at 587, upon closer examination that appeal is really an illusion. Contrary to the EEOC's and Wessel's argument, the actual reason for the "and any agent" language in the definition of "employer" was to ensure that courts would impose respondeat superior liability upon employers for the acts of their agents. Birkbeck, 30 F.3d at 510; Miller, 991 F.2d at 587.

    That conclusion accords with the rest of the structure of the ADA, Title VII, and the ADEA. Those statutes all limit employer liability to employers with either fifteen or twenty, or more, employees. That limitation struck a balance between the goal of stamping out all discrimination and the goal of protecting small entities from the hardship of litigating discrimination claims. See Miller, 991 F.2d at 587 ("If Congress decided to protect small entities with limited resources from liability, it is inconceivable that Congress intended to allow civil liability to run against individual employees."); Birkbeck, 30 F.3d at 510 ("The purpose of this provision can only be to reduce the...

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