Doll v. Brown

• Decision Date: 18 March 1996
• Docket Number: No. 95-1505,95-1505
• Citation: 75 F.3d 1200
• Parties: , 5 A.D. Cases 369 Charles DOLL, Plaintiff-Appellee, v. Jesse BROWN, Secretary of Veterans Affairs, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1200

75 F.3d 1200

64 USLW 2563, 5 A.D. Cases 369

Charles DOLL, Plaintiff-Appellee, v. Jesse BROWN, Secretary of Veterans Affairs, Defendant-Appellant.

No. 95-1505.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 3, 1996.

Decided Feb. 8, 1996.

Rehearing Denied March 18, 1996.

Stephen G. Seliger (argued), Chicago, IL, Clare M. Kralovec, Mary L. Mikva, Seliger & Mikva, Chicago, IL, for Plaintiff-Appellee.

Robert S. Greenspan, Jeffrey Clair (argued), Department of Justice, Civil Division, Appellate Section, Washington, DC, Jonathan Haile, Office of the United States Attorney, Civil Division, Chicago, IL, for Defendant-Appellant.

Before POSNER, Chief Judge, and CUMMINGS and EASTERBROOK, Circuit Judges.

POSNER, Chief Judge.

The appeal by the government in this suit under section 501 of the Rehabilitation Act, 29 U.S.C. § 791, presents important questions concerning remedies in employment discrimination cases. The plaintiff, Charles Doll, who is now 60 or 61 years old, a competent and experienced electrician, was in August of 1986 employed as an electrician by a Veterans Administration (now Department of Veterans Affairs) hospital. He was afflicted with cancer of the throat and that month underwent both a laryngectomy and a tracheotomy. As a result of these operations he not only has no larynx, but breathes through a hole in his throat (a stoma) rather than through his nose and mouth. He returned to work the month after the operations. Several months later, in March of 1987, while putting out a small fire at work, he inhaled some of the chemical particulates from the fire extinguisher, had trouble breathing, and had to be rushed to the emergency room of the hospital. Apparently the problem was that the particulates, breathed through his stoma and thus unfiltered by his nose, caused him to cough, and the coughing ruptured the stitches in the not yet completely healed stoma, causing bleeding and the breathing difficulties. Doll asked his superiors to excuse him from having to work around heavy dust. They refused to make this accommodation to his condition, and instead, in June of 1987, transferred him to a different job, that of parts and tools attendant. Although at first his salary was the same as his electrician's salary, later the electricians received larger raises and as a result Doll earned less than he would have done had he remained an electrician. After the stoma healed completely, he was able to work even in heavy dust but his superiors refused to reinstate him as an electrician.

In March of the following year he applied for promotion to the position of electrician foreman, where he would have been in charge of the 12 to 14 electricians employed in the hospital's electrical unit. Even though the foreman is exposed to less dust than the other electricians, and even though Doll had recovered sufficiently to work in heavy dust, his superiors refused even to consider his application for the foreman's job, and the job went to another electrician, Dennis Stein.

After exhausting his administrative remedies, Doll brought this suit against the Department of Veterans Affairs. The suit proceeded to trial before Judge Hart. He concluded that the Department had violated the Rehabilitation Act, and he ordered the Department to reinstate Doll as an electrician, to pay him $61,508 in back pay, representing the difference between the salary he actually received between April 1988 (when the foreman's job went to Stein) and the date of trial and the salary he would have received had he been made foreman then, and to consider Doll for promotion to electrician foreman when the position next became vacant. It did become vacant shortly afterward, and Doll applied and was again passed over.

The plaintiff in an ordinary tort case must prove not only that the defendant committed a wrongful act but also that the act injured the plaintiff, that is, made him worse off than he would have been had the defendant not acted. Both wrong and injury are elements of the plaintiff's case, which he thus must prove by a preponderance of the evidence, because, as we tirelessly repeat, most recently in Rozenfeld v. Medical Protective Co., 73 F.3d 154, 155-56 (7th Cir.1996), there is no tort without an injury. But in the case of the statutory and constitutional torts of employment discrimination, the Supreme Court has held that the burden of proof on the issue of injury rests on the employer, the defendant, rather than on the employee, the plaintiff. If the plaintiff succeeds in proving that the employer violated the law, the latter can avoid having to pay damages or to provide other relief to the plaintiff only by proving that the plaintiff was not made worse off by the violation. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 359, 362, 97 S.Ct. 1843, 1866-67, 1868, 52 L.Ed.2d 396 (1977); Franks v. Bowman Transportation Co., 424 U.S. 747, 772-73, 96 S.Ct. 1251, 1267-68, 47 L.Ed.2d 444 (1976).

This shifting of burdens is not quite the novelty that it may seem. Even in common law tort cases courts sometimes shift the burden of proof on the issue of injury to the defendant, for example in DES cases, where plaintiffs cannot show which manufacturer's pills they ingested. See, e.g., Sindell v. Abbott Laboratories, 26 Cal.3d 588, 163 Cal.Rptr. 132, 144-46, 607 P.2d 924, 936-38 (1980); Krist v. Eli Lilly & Co., 897 F.2d 293, 300 (7th Cir.1990), and examples discussed in Price Waterhouse v. Hopkins, 490 U.S. 228, 263-64, 109 S.Ct. 1775, 1797-98, 104 L.Ed.2d 268 (1989) (concurring opinion).

Analysis is complicated in the field of employment discrimination by the "mixed motive" cases, which are subtly different from the no-injury cases, of which this is claimed to be one. If the plaintiff proves that the employer was motivated to take the action of which the plaintiff complains, which might be, as here, the denial of a promotion, by a discriminatory purpose, but the employer proves that he would have taken the same action even if he had had no discriminatory purpose, the employer has negated liability and not just injury. Price Waterhouse, which adopted this allocation of burdens in mixed-motive cases under Title VII of the Civil Rights Act of 1964, held that the employer's standard of proof for rebutting liability in a mixed-motive case is the usual civil standard of the preponderance of the evidence. But the Court left open the possibility that there might be a higher standard when liability is established and the employer seeks to negate only injury. Id. at 253-54, 109 S.Ct. at 1792-93 (plurality opinion). Congress has amended Title VII to convert mixed-motive cases to no-injury cases, 42 U.S.C. § 2000e-2(m); Pilditch v. Board of Education, 3 F.3d 1113, 1118 n. 2 (7th Cir.1993), but we may assume, without having to decide, that the Price Waterhouse approach survives in other types of discrimination cases. Liability was established here by the fact that the Rehabilitation Act imposes on federal employers a positive duty (here violated) of accommodation to any known physical or mental handicap of a qualified applicant or employee, as well as the usual negative duty of nondiscrimination. 29 C.F.R. § 1613.704; Fedro v. Reno, 21 F.3d 1391, 1394-95 (7th Cir.1994); Lyons v. Legal Aid Society, 68 F.3d 1512, 1514-15 (2d Cir.1995).

Some courts, including ours, have held that the employer who wants to prove that there was no injury must do so by clear and convincing evidence. E.g., United States v. City of Chicago, 853 F.2d 572, 575 (7th Cir.1988); Trout v. Lehman, 702 F.2d 1094, 1107 (D.C.Cir.1983), vacated on other grounds, 465 U.S. 1056, 104 S.Ct. 1404, 79 L.Ed.2d 732 (1984). Since the government does not contest that approach in this case, we accept it, but we shall not conceal our skepticism, especially with regard to the application of this purely judge-made rule to suits against the United States. Common law tort cases that shift the burden of proof on the question of injury do not go this far, and while employment discrimination is wrongful and should be sanctioned, so should killing a person by driving carelessly. It is true that the plaintiff in a personal injury case is generally in as good a position as the defendant to obtain evidence on whether the defendant injured him, while the relevant evidence of injury in an employment discrimination case--evidence as to whether the employer would have taken the adverse action complained of even in the absence of a discriminatory motive--is in the defendant's possession. That is a reason for shifting the burden of production to the defendant but not for shifting the burden of persuasion (though that is what the mixed-motive and no-injury cases do, Bristow v. Drake Street Inc., 41 F.3d 345, 353 (7th Cir.1994)), let alone for shifting the burden of persuasion and then increasing that burden. The practical effect is to enable some plaintiffs who were not injured by the defendant's wrongdoing (beyond the loss of a chance, of which more later) to obtain a large award anyway.

A remedy that "compensates" for a loss when there is no loss, or overcompensates for a slight loss, is punitive. Since punitive damages are never authorized in suits against the United States, it is particularly questionable to use a rule on burden of proof to authorize the award in such suits of what are in effect though not in name punitive damages. This was done in Day v. Mathews, 530 F.2d 1083, 1085-86 (D.C.Cir.1976) (per curiam), but without discussion of the possible significance of the fact that the defendant was a federal agency (a cabinet secretary sued in his official capacity). The circuits have divided over the propriety of requiring clear and convincing evidence of noninjury in employment discrimination cases even if the defendant is a private employer. With City of Chicago and Trout compare Fields v. Clark University, 817 F.2d 931, 937 (1st Cir.1987), and Wooldridge v....