Bennett v. Bd. of Educ. of Washington Cnty. Joint Vocational Sch. Dist., Case No. C2-08-CV-0663
| Decision Date | 07 October 2011 |
| Docket Number | Case No. C2-08-CV-0663 |
| Parties | CONSTANCE BENNETT, Plaintiff, v. BOARD OF EDUCATION OF WASHINGTON COUNTY JOINT VOCATIONAL SCHOOL DISTRICT, Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
ORDER
This matter is before the Court on the following motions: (1) the Defendant's Motion In Limine To Exclude Certain Evidence of Plaintiff's Claimed Damages (Doc. 86); (2) the Plaintiff's Motion In Limine (Doc. 93); (3) the Plaintiff's Amended Motion In Limine to Exclude the Testimony of Certain Fact Witnesses and Exhibits (Doc. 96);1 and (4) the Defendant's Motion to Bifurcate Punitive Damages from Liability and Compensatory Damages Issues (Doc. 99). For the reasons that follow, the Parties' motions are GRANTED in part and DENIED in part.
Motions in limine allow the Court to rule on the admissibility of evidence in advance of trial in order to expedite proceedings and give the parties advance notice of the evidence upon which they may not rely to prove their case. See Jonasson v. Lutheran Child & Family Servs., 115 F.3d. 436, 440 (7th Cir. 1997). To prevail on a motion in limine, the moving party mustshow that the evidence is clearly inadmissible. Ind. Ins. Co. v. Gen. Elec. Co ., 326 F. Supp. 2d 844, 846 (N.D. Ohio 2004). Courts are typically "reluctant to grant broad exclusions of evidence in limine because a court is almost always better situated during the actual trial to assess the value and utility of evidence." Black v. Columbus Pub. Sch ., No. 2:96-CV-326, 2007 U.S. Dist. LEXIS 68672, at *2 (S.D. Ohio Sept. 17, 2007); accord Sperberg v. Goodyear Tire & Rubber Co., 519 F. 2d. 708, 712 (6th Cir. 1975). If the Court does deny a motion in limine, however, the Court can reconsider the admissibility of the evidence as the proceedings give context to the pretrial objections. Black, 2007 U.S. Dist. LEXIS 68672, at *2.
The Defendant first argues that evidence relating to the Plaintiff's claim for attorneys fees and costs is inadmissible at trial for the reasons stated by the Court in its order of August 2, 2011, granting the Defendant's motion to bifurcate (Doc. 89). The Plaintiff concurs, and the Court GRANTS the Defendant's motion to exclude evidence relating to the Plaintiff's claim for attorneys fees and costs.
Second, the Defendant argues that all evidence regarding compensatory and punitive damages should be excluded at trial.
The Sixth Circuit has yet to rule on the availability of compensatory or punitive damages for violations of the anti-retaliatory provision of the ADA found in 42 U.S.C. § 12203(a). See Baker v. Windsor Republic Doors, 414 F. App'x 764, 779 (6th Cir. 2011) (); Bennett v. Bd. of Educ., No. 2:08-CV-663, 2009 U.S. Dist. LEXIS 82760, *17-18 (S.D. OhioSept. 10, 2009) ( district court split within the Sixth Circuit "as to whether a plaintiff making a claim of retaliation against an employer under the ADA can recover compensatory or punitive damages").
The Fourth, Seventh, and Ninth Circuits have held that compensatory damages and punitive damages are not available for ADA retaliation claims. See Rhoads v. FDIC, 94 F. App'x 187, 188 (4th Cir. 2004) (per curiam) (); Kramer v. Banc of Am. Sec., LLC, 355 F.3d 961, 968 (7th Cir. 2004) (); Alvarado v. Cajun Operating Co., 588 F.3d 1261, 1269 (9th Cir. 2009) (). Kramer is the seminal case on the proper remedies for an ADA retaliation claim. Before Kramer, the Second, Eighth and Tenth Circuits had affirmed punitive or compensatory damages awards in retaliation claims without significant discussion. Salitros v. Chrysler Corp., 306 F.3d 562, 574-76 (8th Cir. 2002) (); EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1246 (10th Cir. 1999) (). Since Kramer, no Circuit Court has adopted the position that either compensatory or punitive damages are available.
The Kramer court began with the proposition that the relevant remedies for a retaliation claim were those prescribed by § 12117. See Kramer, 355 F.3d at 964. Such is in fact the case for retaliation claims based on opposition to violation of Title I. See 42 U.S.C. § 12203(c). Section 12203(c), however, prescribes three alternate remedies depending upon which title serves as the foundation for the retaliation claim. It states that "[t]he remedies and procedures available under sections 107, 203, and 308 of this Act [42 U.S.C. §§ 12117, 12133, 12188] shallbe available to aggrieved persons for violations of subsection (a) and (b), with respect to title I, title II, and title III [], respectively." Thus in a case such as this one based upon opposition to conduct prohibited by Title II,2 the remedy is contained within § 12133. The Kramer analysis is therefore not persuasive in the case sub judice.
Section 12133 makes the remedies in the case sub judice coextensive with those in Section 505 of the Rehabilitation Act of 1973. See 42 U.S.C. § 12133 (citing 29 U.S.C. § 794a). Other circuits have interpreted § 12133 to permit compensatory and punitive damages for Title II claims where the plaintiff makes a showing of discriminatory intent. See Midgett v. Tri-County Metro. Transp. Dist., 254 F.3d 846, 851 (9th Cir. 2001); Duvall v. County of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001) (). In the case sub judice, the Plaintiff has alleged—and indeed must prove—discriminatory intent. Thus, in accordance with these cases, the Court DENIES the Defendant's motion to exclude of compensatory and punitive damages.
The Defendant argues that the Plaintiff's claim for back pay should be limited in the following manner: (1) her earnings from her work at Selby General Hospital should be deducted from the award; (2) it should not include pay for the time period after her departure from Selby General Hospital as that departure was voluntary; (3) her earnings from her other employment should be deducted from the award; (4) it should not include pay for the period beginning on January 27, 2010, during which she was not working due to a rotator cuff injury; and (5) itshould not include the value of lost benefits from January 27, 2010, forward because she was not working during that time due to an unrelated injury.
The Parties are in agreement that a plaintiff has a duty to mitigate her damages by seeking comparable employment with reasonable diligence. See Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1169 (6th Cir. 1996) (citing 42 U.S.C. §2000e-5(g)). On that basis, the Plaintiff concedes that her award of back pay should be reduced by the amount earned at Selby General Hospital and her other employment. This portion of the Defendant's motion is therefore GRANTED.
The Plaintiff argues, however, that her termination from Selby General Hospital does not truncate her right to back pay as her departure was not in fact voluntary. This argument is borne out by the evidence: Although the Plaintiff did say that her termination was "mutual," she continued to explain that she was fired for being absent with the flu. This portion of the Defendant's motion is DENIED.
Finally, she argues that she is entitled to pay after January 27, 2010, because her injury was related to the Defendant's retaliation. This Court previously excluded evidence of back pay in an ADA retaliation case. Geiger v. Pfizer, Inc., No. 2:06-CV-636, 2009 U.S. Dist. LEXIS 34982, *25-27 (S.D. Ohio Apr. 15, 2009) (Marbley, J.). As the Court stated in that case, "[a] plaintiff cannot recover damages for lost wages and benefits for any period of time she is unavailable to work, such as for periods of unrelated injury or disability." Id. at 26 (citing Falls Stamping & Welding v. Int'l Union, 485 F. Supp. 1097, 1101 (N.D. Ohio 1979); Hatton v. Ford Motor Co., 508 F.Supp. 620 (E.D. Mich. 1981); Bender v. Salvation Army, 830 F. Supp. 1454, 1456 (M.D. Fla. 1993); Sennello v. Reserve Life Ins. Co., 667 F.Supp. 1498, 1520 (S.D. Fla. 1987); Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 401 (3d Cir. 1976)).
In Geiger, the plaintiff's injury was wholly unrelated to her retaliation. The Plaintiffclaims that her rotator cuff injury was causally related to her retaliation claim. Where that is the case, back pay is not tolled. See, e.g., Whatley v. Skaggs Cos., 508 F. Supp. 302, 304 n.1(D. Colo. 1981) (). For the same reason, the Plaintiff argues that her claim for lost benefits after January 27, 2010, should not be tolled. At this time, the Defendant has not sufficiently rebutted the Plaintiff's evidence of causation for the Court to issue a wholesale exclusion of the evidence on the Plaintiff's claim for back pay after January 27, 2010, and this portion of the Defendant's motion is DENIED.
The Defendant argues that the Plaintiff is not entitled to front pay because she did not make a reasonable effort to find other suitable employment. See Ferrero v. Henderson, 341 F. Supp. 2d...
To continue reading
Request your trial