Alvarado v. Cajun Operating Co., No. 08-15549.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Rawlinson
• Citation: 588 F.3d 1261
• Parties: Tannislado ALVARADO, Plaintiff-Appellant, v. CAJUN OPERATING COMPANY, dba AFC Enterprises, Inc., Defendant-Appellee.
• Docket Number: No. 08-15549.
• Decision Date: 11 December 2009

588 F.3d 1261 Tannislado ALVARADO, Plaintiff-Appellant,
v.
CAJUN OPERATING COMPANY, dba AFC Enterprises, Inc., Defendant-Appellee. No. 08-15549. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 2, 2009. Filed December 11, 2009.

[588 F.3d 1262]

Richard M. Martinez, Law Office of Richard M. Martinez, Tucson, AZ, for appellant, Tannislado Alvarado.

Lori L. Voepel (argued) and Rachel Love, Jones, Skelton & Hochuli, P.L.C., Phoenix, AZ, for appellee, Cajun Operating Co.

Appeal from the United States District Court for the District of Arizona, Cindy K. Jorgenson, District Judge, Presiding. D.C. No. 04-CV-00631-CKJ.

Before: JOHNNIE B. RAWLINSON and JAY S. BYBEE, Circuit Judges, and LARRY BURNS,^* District Judge.

RAWLINSON, Circuit Judge:

Appellant Tannislado Alvarado (Alvarado) filed a retaliation claim pursuant to the Americans with Disabilities Act (ADA) alleging that Appellee Cajun Operating Co. (Cajun) retaliated against him for complaining

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that his manager had discriminated against him based on his disability.

Alvarado challenges the district court's grant of Cajun's motion in limine barring Alvarado from seeking punitive and compensatory damages for his ADA retaliation claim. Alvarado also contends that the district court erred in holding that, because ADA retaliation claims are limited to equitable relief, Alvarado was not entitled to a jury trial on his retaliation claim. We agree with the district court's resolution of these issues, and affirm the judgment.

I. BACKGROUND

At the age of sixty-five, Alvarado was hired by Jesus Tapia (Tapia), the store manager of a Church's Chicken (Church's) in Tucson, Arizona, to perform part-time maintenance work. Alvarado eventually became a cook at Church's. The cook position required the performance of various duties, including cleaning the walk-in refrigerator.

For approximately three and one-half years, Alvarado performed satisfactorily according to job evaluations from Tapia and his successor, Tina Montague (Montague). That all changed when Alvarado called Church's hotline to complain that Montague had made inappropriate comments about his age. When confronted, Montague denied any wrongdoing. However, three days later she gave Alvarado his first Performance Counseling Record (counseling record) delineating Alvarado's asserted failure to complete his daily duties, such as panning and rotating chicken, battering chicken, and cleaning the walk-in refrigerator. Olivia Martinez (Martinez), an assistant manager, gave Alvarado two additional counseling records for similar derelictions. Martinez subsequently stated that she only wrote the counseling records because Montague told her to do so. According to Martinez, Alvarado did not deserve the counseling records. However, over the next nine months, Alvarado received four more similar counseling records from assistant store manager Don Magel.

In response to the counseling reports, Alvarado called the hotline a second time, accusing Montague of retaliation against him for making the first hotline call. Alvarado also complained to Montague about the pain in his hands when he worked in the walk-in refrigerator. Montague referred Alvarado to Dr. Robert Johnson, who "cleared [Alvarado] to return to work the same day after noting that [Alvarado] suffered only from arthritis, a condition common among people his age."

After Alvarado was terminated, he filed a lawsuit against Cajun alleging employment discrimination in violation of Title I of the ADA, 42 U.S.C. § 12112; age discrimination in violation of 29 U.S.C. § 623; race and national origin discrimination in violation of 42 U.S.C. § 1981; and employment discrimination and retaliation claims pursuant to 29 U.S.C. § 215(a)(3) and 42 U.S.C. § 12203.¹

Cajun filed a motion in limine to bar Alvarado from seeking punitive and compensatory damages for his ADA retaliation claim. Cajun also asserted that, because only equitable relief was available, Alvarado did not have a right to a jury trial on his retaliation claim.

The district court granted Cajun's motion in limine, concluding that the plain language of 42 U.S.C. § 1981a(a)(2) precluded

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compensatory damages, punitive damages, and trial by jury.

The district court certified an interlocutory appeal on these issues, and we granted permission to appeal the district court's interlocutory order.

II. STANDARD OF REVIEW

"We review a district court's decision involving interpretation of a federal statute de novo." In re Digimarc Corp. Derivative Litig., 549 F.3d 1223, 1229 (9th Cir.2008) (citation omitted).

III. DISCUSSION

Alvarado maintains that the district court erred in interpreting the ADA to limit his remedies to those available in equity. Alvarado posits that remedies provided under the ADA are coextensive with remedies available under the Civil Rights Acts of 1964 and 1991. More specifically, Alvarado contends that because compensatory and punitive damages are available under the Civil Rights Acts, compensatory and punitive damages are available for ADA retaliation claims.

Under the ADA, 42 U.S.C. § 12203(a), the anti-retaliation provision, provides:

No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.

42 U.S.C. § 12203(a). Instead of delineating specific remedies available for retaliation claims, section 12203(c) references the remedies and procedures available pursuant to 42 U.S.C. §§ 12117, 12133, and 12188. See 42 U.S.C. § 12203(c). In turn, 42 U.S.C. § 12117 references remedies provided by 42 U.S.C. §§ 2000e-4 through 2000e-9. See 42 U.S.C. § 12117(a).

Section 2000e-5(g)(1) provides:

If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice), or any other equitable relief as the court deems appropriate. Back pay liability shall not accrue from a date more than two years prior to the filing of a charge with the Commission. Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.

42 U.S.C. § 2000e-5(g)(1).

42 U.S.C. § 1981a expanded the remedies available pursuant to 42 U.S.C. § 2000e-5 by providing for punitive and compensatory damages for specified disability claims. Section 1981a(a)(2) states:

In an action brought by a complaining party under the powers, remedies, and procedures set forth in section 706 or 717 of the Civil Rights Act of 1964 [42 U.S.C.A. §§ 2000e-5 or 2000e-16] (as provided in section 107(a) of the Americans with Disabilities Act of 1990 (42 U.S.C. 12117(a)), and section 794a(a)(1) of Title 29, respectively) against a respondent who engaged in unlawful intentional discrimination (not an employment practice that is unlawful because of its disparate impact) under section 791 of Title 29 and the regulations implementing section 791 of Title 29, or who violated the requirements of section 791 of Title 29 or the regulations implementing section 791 of Title 29 concerning

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the provision of a reasonable accommodation, or section 102 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12112), or committed a violation of section 102(b)(5) of the Act, against an individual, the complaining party may recover compensatory and punitive damages as allowed in subsection (b) of this section, in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964, from the respondent.

42 U.S.C. § 1981a(a)(2) (emphasis added). Noticeably absent is any reference to 42 U.S.C. § 12203, the ADA retaliation provision.

Although we have not resolved whether compensatory and punitive damages are available for ADA retaliation claims,² other courts have applied divergent approaches to interpret the ADA's remedial provisions. In Kramer v. Banc of Am. Sec., 355 F.3d 961 (7th Cir.), cert. denied 542 U.S. 932, 124 S.Ct. 2876, 159 L.Ed.2d 798 (2004), the Seventh Circuit held that punitive and compensatory damages were not available for ADA retaliation claims. The Seventh Circuit opined:

We thus conclude that the 1991 Civil Rights Act does 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. A close reading of the plain language of § 1981a(a)(2) makes it clear that the statute does not contemplate compensatory and punitive damages for a retaliation claim under the ADA. Section 1981a(a)(2) permits recovery of compensatory and punitive damages (and thus expands the remedies available under § 2000e-5(g)(1)) only for those claims listed therein. With respect to the ADA, § 1981a(a)(2) only lists claims brought under §§ 12112 or 12112(b)(5). Because claims of retaliation under the ADA (§ 12203) are not listed, compensatory and punitive damages are not available for such claims. Instead, the remedies available for ADA retaliation claims against an employer are limited to the remedies set forth in § 2000e-5(g)(1).

Kramer, 355 F.3d at 965 (citation omitted). The Seventh Circuit, therefore, held that "[b]ecause the plain language of § 1981a(a)(2) limits its application to specific claims, it is inappropriate to expand the scope of the statute in reliance on legislative history to...