Miles-Hickman v. David Powers Homes, Inc.

• Decision Date: 24 March 2009
• Docket Number: Civil Action No. H-07-0754.
• Citation: 613 F.Supp.2d 872
• Parties: Pamela MILES-HICKMAN, Plaintiff, v. DAVID POWERS HOMES, INC., Defendant.
• Court: U.S. District Court — Southern District of Texas

613 F.Supp.2d 872

Pamela MILES-HICKMAN, Plaintiff, v. DAVID POWERS HOMES, INC., Defendant.

Civil Action No. H-07-0754.

United States District Court, S.D. Texas, Houston Division.

March 24, 2009.

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Steven E. Petrou, Attorney at Law, Cypress, TX, for Plaintiff.

Carol P. Keough, Coats Rose et al., Houston, TX, for Defendant.

OPINION

NANCY F. ATLAS, District Judge.

Many issues in this case were tried to a jury on December 15 to December 19, 2008. Other issues addressed at trial are ones the Court must decide. As to issues before the jury, the Court will address Defendant's Renewed Motion for Judgment as a Matter of Law and Renewed Motion as to Recovery of Compensatory Damages under ADA and to Remit Damages, or in the Alternative, Motion for New Trial [Doc. # 143] ("DPH's Renewed Motion"), filed by Defendant David Powers Homes, Inc. ("DPH").¹ Upon a careful review of the evidence admitted at trial, all applicable law, and the parties' briefing on the motion, the Court concludes that DPH's Renewed Motion should be denied. The Court separately makes findings of fact and conclusions of law on issues tried to the bench.

I. PROCEDURAL BACKGROUND

After her employment with Defendant David Powers Homes, Inc. was terminated in December 2005, Hickman filed a charge with the Equal Employment Opportunity Commission ("EEOC"), alleging disability discrimination and retaliation. Upon receiving a "Notice of Right to Sue" letter from the EEOC, Hickman timely filed this lawsuit, alleging violations of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., the Texas Commission on Human Rights Act ("TCHRA"), Tex. Lab.Code § 21.001 et seq., the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601 et seq., the Employee Retirement Income Security Act of 1974 ("ERISA"), 20 U.S.C. § 1001 et seq., and the Consolidated Omnibus Reconciliation Act of 1985 ("COBRA"), 29 U.S.C. § 1161 et seq. On October 21, 2008, the Court issued a Memorandum and Order [Doc. # 82] granting in part DPH's Motion for Summary Judgment [Doc. #46] and dismissing several of Hickman's claims. Four claims remained for trial: (1) retaliation under the ADA; (2) retaliation under the TCHRA; (3) retaliation under the FMLA; and (4) interference under the FMLA.

Prior to Docket Call, DPH filed a Motion to Exclude Testimony/Evidence [Doc. # 94] ("DPH's Motion to Exclude"), seeking inter alia to exclude all evidence supporting compensatory damages for Hickman's ADA retaliation claim. DPH argued that as a matter of law, compensatory damages are not available for violations of the ADA retaliation statute, 42 U.S.C. § 12203. At Docket Call, the Court expressly held that it would reserve judgment on the compensatory damages issue.

Throughout the course of pretrial proceedings, the Court repeatedly informed the parties that only certain of the outstanding claims entitled Hickman to trial by jury. The Court empaneled a jury for the claims on which Hickman was entitled.² Because the facts pertaining to many of the claims overlap, the Court exercised its discretion to consider the jury's verdict for advisory purposes on issues tried to the bench.

Trial began December 15, 2008. After Hickman rested her case in chief, DPH made a Motion for Judgment as a Matter of Law [Doc. # 135] ("DPH's Motion for Judgment"). The Court exercised its discretion to reserve decision until after the verdict. After one day of deliberation, on December 19, 2008, the jury returned a verdict in Hickman's favor. The jury found that DPH violated the ADA by terminating Hickman's employment because she requested accommodations for claimed disabilities. The jury decided DPH violated the TCHRA by terminating Hickman's employment because she opposed a discriminatory practice under the TCHRA. The jury awarded damages for the ADA violation but awarded nothing for the TCHRA violation. The jury found that DPH did not retaliate against Hickman for engaging in FMLA-protected activity and did not interfere with, restrain, or deny Hickman's right to FMLA leave or her attempt to exercise her right to FMLA leave.³

On December 29, 2008, and within the ten day period required by Federal Rule of Civil Procedure 50(b), DPH filed the Renewed Motion for Judgment as a Matter of Law [Doc. # 143] currently pending before the Court.

II. AVAILABILITY OF COMPENSATORY DAMAGES FOR ADA RETALIATION CLAIM

As a threshold issue, the Court must determine whether compensatory damages are available for an ADA retaliation claim. This in turn dictates the legal standard the Court must apply in analyzing DPH's Renewed Motion. DPH contends that as a matter of law, compensatory damages are not available for violations of the ADA retaliation statute, 42 U.S.C. § 12203.⁴ Hickman argues that the Fifth Circuit has not ruled that compensatory damages are not available and that Congress did not intend to deprive disability retaliation victims of compensatory damages.

Section 12203 of the ADA prohibits retaliation against an individual because she has exercised her rights under the ADA. 42 U.S.C. § 12203. Section 12203(c) provides that the remedies available for the violation of § 12203 in the course of a person's employment are those provided by 42 U.S.C. § 12117. Section 12117 provides that the available remedies are those provided by the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e-4, e-5, e-6, e-8, and e-9. 42 U.S.C. § 12117(a). "Section 2000e-5(g)(1) provides that a court may order certain equitable relief including, but not limited to, back pay and front pay, but the statute does not provide for compensatory or punitive damages." Kramer v. Banc of Am. Securities, LLC, 355 F.3d 961, 964 (7th Cir.2004). None of the other provisions cited in § 12117(a) grant compensatory or punitive damages for violations.

As the Seventh Circuit explained in Kramer, a recent, well-reasoned opinion, "the 1991 Civil Rights Act, 42 U.S.C. § 1981a(a)(2), expanded the scope of remedies available under § 2000e-5(g)(1) in certain circumstances to provide for compensatory and punitive damages." Id. Section 1981a(a)(2) provides, in relevant part, that:

In an action brought by a complaining party ... against a respondent who engaged in unlawful intentional discrimination ... under ... [42 U.S.C. § 12112] or committed a violation of [42 U.S.C. § 12112(b)(5)], against an individual, the complaining party may recover compensatory and punitive damages ...

42 U.S.C. § 1981a(a)(2).

Circuit and district courts are split over whether a plaintiff asserting an ADA retaliation claim for actions arising from her employment has the right to seek compensatory damages. Resolution of this issue affects the availability of trial by jury for ADA retaliation claims.

The Seventh Circuit, in Kramer, held that the ADA authorizes only equitable relief for ADA retaliation claims under 42 U.S.C. § 12203. Kramer, 355 F.3d at 961. The Kramer court found that the plain text of § 1981a(1)(2) was clear:

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.

Kramer, 355 F.3d at 965.

Citing Kramer, the Fourth Circuit has held in two unpublished decisions that compensatory and punitive damages are not available for ADA retaliation claims. See Bowles v. Carolina Cargo, Inc., 100 Fed.Appx. 889 (4th Cir.2004) (unpublished); Rhoads v. Federal Deposit Ins. Co., 94 Fed.Appx. 187 (4th Cir.2004) (unpublished). Furthermore, the majority of post-Kramer district court decisions have followed the holding in Kramer. See Arredondo v. S2 Yachts, 496 F.Supp.2d 831, 836 n. 5 (W.D.Mich.2007) (collecting cases).

On the other hand, prior to the Seventh Circuit's decision in Kramer, the Second, Eighth, and Tenth Circuits had affirmed awards of compensatory damages in ADA retaliation cases. See Muller v. Costello, 187 F.3d 298, 315 (2d Cir.1999); Foster v. Time Warner Entertainment Co., 250 F.3d 1189, 1196-98 (8th Cir.2001); Salitros v. Chrysler Corp., 306 F.3d 562, 577 (8th Cir.2002); EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1249 (10th Cir.1999). These cases, however, affirmed the award of compensatory damages without expressly examining whether compensatory damages are available under the ADA. Nothing in these opinions suggests that the parties in any of these cases argued the issue.⁵

Having reviewed the relevant provisions of the ADA, the Civil Rights Act of 1964, and the Civil Rights Act of 1991, the Court finds persuasive the reasoning in Kramer and subsequent cases holding that compensatory and punitive damages are not available for violations of § 12203. While this result is not free from doubt, the Court concludes it must follow the plain language of the statute, which necessarily governs when that language is clear on its face. See Newby v. Enron Corp., 338 F.3d 467, 473 (5th Cir.2003). "[W]here a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it." Transamerica Mortg. Advisors, Inc. (TAMA) v. Lewis, 444 U.S. 11, 20, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979). The Court accordingly concludes that as a matter of law, compensatory damages are not available for violations of 42 U.S.C. § 12203, the retaliation provision of the ADA.

III. ANALYSIS ON RENEWED MOTION FOR JUDGMENT

Because Hickman was not entitled to recover compensatory damages under her ADA retaliation claim, she was only entitled to seek equitable remedies for that claim. S...