Serwatka v. Rockwell Automation, Inc.

• Decision Date: 15 January 2010
• Docket Number: No. 08-4010.,08-4010.
• Citation: 591 F.3d 957
• Parties: Kathleen A. SERWATKA, Plaintiff-Appellee, v. ROCKWELL AUTOMATION, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

591 F.3d 957

Kathleen A. SERWATKA, Plaintiff-Appellee, v. ROCKWELL AUTOMATION, INC., Defendant-Appellant.

No. 08-4010.

United States Court of Appeals, Seventh Circuit.

Argued May 14, 2009.

Decided January 15, 2010.

Kevin M. Scott (argued), Dewitt, Ross & Stevens, Brookfield, WI, Robert M. Mihelich, New Berlin, WI, for Plaintiff-Appellee.

Robert H. Duffy (argued), Quarles & Brady, Milwaukee, WI, for Defendant-Appellant.

Before ROVNER and EVANS, Circuit Judges, and VAN BOKKELEN, District Judge.^*

ROVNER, Circuit Judge.

Kathleen A. Serwatka filed suit against her former employer, Rockwell Automation, Inc. ("Rockwell"), under the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq. (the "ADA"), alleging that Rockwell discharged her because it regarded her as being disabled, despite her ability to perform the essential functions of her job. A jury agreed with Serwatka, answering "Yes" to the following question on the special verdict form: "Did defendant terminate plaintiff due to its perception that she was substantially limited in her ability to walk or stand?" R. 115 at 1. But the jury also answered "Yes" to this follow-up question: "Would defendant have discharged plaintiff if it did not believe she was substantially limited in her ability to walk or stand, but everything else remained the same?" R. 115 at 1-2.

The district court treated the jury's answers to these two questions as a mixed-motive finding, that is, a finding that Rockwell's decision to fire Serwatka was the product of both lawful and unlawful motives. Serwatka v. Rockwell Automation, Inc., 583 F.Supp.2d 994, 996 (E.D.Wis. 2008). See generally Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). On appeal, Rockwell has taken issue with this characterization of the jury's special verdict, but we have no reason to question the district court's understanding of what the jury found, and in any event, Rockwell did not make this contention below in its post-trial brief opposing Serwatka's request for relief based on the jury's verdict. R. 122; see, e.g., Int'l Prod. Specialists, Inc. v. Schwing Am., Inc., 580 F.3d 587, 598 (7th Cir.2009) (arguments not made to the district court are waived). The more pertinent issue is whether the jury's mixed-motive finding entitles Serwatka to judgment in her favor and to the relief that the district court awarded her. Rockwell contends that it does not, given the provisions of the ADA and the Supreme Court's recent decision in Gross v. FBL Fin. Servs., Inc., ___ U.S. ___, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). We agree. Our analysis of this issue begins with Price Waterhouse.

In Price Waterhouse, a plurality of the Supreme Court recognized that an employer may violate Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et. seq. ("Title VII"), when it relies upon one of the grounds that the statute forbids employers from considering in employment decisions (i.e., race, color, religion, sex, or national origin), even if the proscribed criterion was not the sole reason for the employer's decision. "Title VII[was] meant to condemn even those decisions based on a mixture of legitimate and illegitimate considerations." 490 U.S. at 241, 109 S.Ct. at 1785. But in recognition of the balance that Congress struck between eliminating invidious employment discrimination and preserving an employer's prerogative to employ whomever it wishes, the Court's majority also held that an employer would bear no liability for a mixed-motive employment decision if it would have made the same decision absent the illegal motive. Id. at 242, 244-45, 258, 109 S.Ct. at 1786, 1787-88, 1795 (plurality); id. at 261 n. *, 109 S.Ct. at 1796 n* (White, J., concurring in the judgment); id. at 261, 279, 109 S.Ct. at 1796, 1806 (O'Connor, J., concurring in the judgment). The Court assigned the burden of persuasion on that point to the employer. Thus, once a plaintiff has proven that a proscribed criterion played a motivating role in the employer's adverse decision, the employer assumes the burden of proving by a preponderance of the evidence that it would have made the same decision even if the illegal factor had played no role in its decisionmaking. See id. at 258, 109 S.Ct. at 1795 (plurality); id. at 259-69, 109 S.Ct. at 1795 (White, J., concurring in the judgment); id. at 276, 109 S.Ct. at 1804 (O'Connor, J., concurring in the judgment).

Although Price Waterhouse dealt solely with Title VII, lower courts, including our own, have applied its principles to cases brought under other anti-discrimination statutes. See McNutt v. Bd. of Trustees of U. of Ill., 141 F.3d 706, 707 (7th Cir.1998). The ADA is of course among those statutes. See Parker v. Columbia Pictures Indus., 204 F.3d 326, 336-37 (2d Cir.2000) (Sotomayor, J.) (coll. ADA cases applying Price Waterhouse methodology, including Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1033-34 (7th Cir.1999)); but see Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 457 (6th Cir.2004) (plaintiff must show that his or her disability was the sole reason for the adverse employment action).

When Congress enacted the Civil Rights Act of 1991, it took two actions with respect to the then-recent Price Waterhouse decision that have particular relevance here. Section 107(a) of the Act added a provision to Title VII which expressly deemed unlawful any employment practice motivated by a person's race, color, religion, sex, or national origin, "even though other factors also motivated the practice," thereby codifying that aspect of Price Waterhouse. P.L. 102-166, 105 Stat. 1071, 1075, codified at 42 U.S.C. § 2000e-2(m). But whereas the Supreme Court's holding relieved an employer of all liability for a mixed-motive decision once it convinced the factfinder that it would have taken the same adverse employment action in the absence of the illegal motive, Congress amended Title VII to authorize limited relief to the plaintiff in such cases. Specifically, section 107(b) of the Act added a second provision to the statute stating that in mixed-motive cases, when an employer has shown that it would have taken the same action in the absence of the illegal motive, a court may award the plaintiff both declaratory and injunctive relief, along with her attorney's fees and costs, but may not award damages nor order the plaintiff hired, reinstated to her former position, or promoted. 105 Stat. at 1075-76, codified at 42 U.S.C. § 2000e-5(g)(2)(B).

The enforcement provision of the ADA incorporates certain of the remedies provided for employment discrimination in Title VII:

The powers, remedies, and procedures set forth in sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9 shall be the powers, remedies, and procedures this subchapter provides to ... any person alleging discrimination on the basis of disability in violation of any provision of this chapter ... concerning employment.

42 U.S.C. § 12117. Among the provisions of Title VII cross-referenced is section 2000e-5, which, in relevant part and as we have just noted, authorizes a court to award certain types of relief to a plaintiff based on a mixed-motive finding.

In light of the jury's mixed-motive finding here, and section 12117's cross-reference to the remedies authorized by Title VII, the district court concluded that Serwatka was entitled to no damages, but was entitled to the other sorts of relief authorized by section 2000e5(g)(2)(B)(i). 583 F.Supp.2d 994. The court granted Serwatka declaratory relief in its judgment order, which noted that her discharge had been motivated in part by Rockwell's perception that she was disabled. Id. at 996-97, 1000; R. 134. It also granted her injunctive relief in the form of a directive that Rockwell place a copy of the judgment in Serwatka's personnel file. 583 F.Supp.2d at 996-97, 1000. The court found further that Serwatka was entitled to an award of attorney's fees and costs. It reasoned that her suit had "some merit," in view of the jury's mixed-motive finding, and had "served the public purpose of discouraging discrimination in employment." 583 F.Supp.2d at 998. "Plaintiff also obtained some, although minimal, non-monetary relief." Id. But given the modest nature of the relief Serwatka had won and the lack of evidence that Rockwell bore any "unwarranted animus" toward her or had engaged in a pattern of disability discrimination, the court found that she was not entitled to fees for all of the time her attorneys had spent litigating the case nor to all of her costs. Id. After determining that Serwatka had reasonably incurred fees and costs in the total amount of $153,290.54, id. at 999, the court reduced that total by eighty percent and awarded her fees and costs in the amount of $30,658.11, id. at 1000.

Rockwell's appeal challenges both the declaratory and injunctive relief that the district court granted to Serwatka as well as the award of fees and costs. Despite the jury's finding that Rockwell's perception of Serwatka's limitations played some role in its decision to discharge her, the company contends that the additional finding that it would have terminated Serwatka regardless of that perception compels the entry of judgment in its favor rather than Serwatka's. Rockwell argues that the mixed-motive analysis that the district court relied on as a basis for its decision to grant Serwatka limited relief is inapplicable to the ADA. It raises other arguments as well in its challenge to the forms of relief that the court awarded, but in view of the Supreme Court's opinion in Gross, decided shortly after we heard oral argument in this case, the applicability of the mixed-motive framework is the only argument that we need to address.

Gross held that because the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. ("ADEA"), lacks the language found in Title VII expressly recognizing mixed-motive claims, such claims are not authorized by the ADEA. Although...