Oliver v. Cole Gift Centers, Inc.

• Citation: 85 F.Supp.2d 109
• Decision Date: 17 February 2000
• Docket Number: No. 3:9702595(GLG).,3:9702595(GLG).
• Court: U.S. District Court — District of Connecticut
• Parties: Laura OLIVER, Plaintiff, v. COLE GIFT CENTERS, INC., Defendant.

85 F.Supp.2d 109

Laura OLIVER, Plaintiff, v. COLE GIFT CENTERS, INC., Defendant.

No. 3:9702595(GLG).

United States District Court, D. Connecticut.

February 17, 2000.

Ruth L. Pulda, Peter D. Goselin, Livingston, Adler, Pulda & Meiklejohn, Hartford, CT, for Plaintiff.

Peter A. Janus, Paul H. Gamache, Siegel, O'Connor, Schiff & Zangari, Hartford, CT, Dana Shaw MacKinnon, Hartford Life Ins Co., Simsbury, CT, for Defendant.

Memorandum Opinion

GOETTEL, District Judge.

Following a jury trial at which the plaintiff prevailed on her claims of intentional discrimination in employment under Title VII, 42 U.S.C. § 2000e et seq. and the Connecticut Fair Employment Practices Act ("CFEPA"), Conn. Gen.Stat. § 46a-60 et seq., and the jury awarded $100,000 in compensatory damages and $500,000 in punitive damages, the parties have now briefed the question of the limitation of the damages award pursuant to the statutory cap of the Compensatory Damages Amendment ("CDA") to Title VII, 42 U.S.C. § 1981a(b)(3). In addition, the parties have briefed the question of equitable relief, including reinstatement, front pay, and injunctive relief requiring the posting of notices in the Defendant's places of businesses.

I. Compensatory and Punitive Damages

A. Title VII's Statutory Cap

The CDA permits victims of intentional discrimination in employment to recover compensatory and punitive damages but imposes limitations on the damages award based on the size of the employer, ranging from $50,000 for a small employer to a maximum recovery of $300,000 for an employer with "more than 500 employees in each of 20 or more calendar weeks in the current or preceding calendar year ...." 42 U.S.C. § 1981a(b)(3)(D). Plaintiff argues that the statutory cap should not apply in this case because the Defendant failed to plead it as an affirmative defense and has therefore waived any claim to a reduction in the jury award based on the statutory cap.

Federal Rule of Civil Procedure 8(c) requires a party to plead affirmatively certain specified defenses as well as "any other matter constituting an avoidance or affirmative defense." A defendant who fails to raise an affirmative defense by presenting it in the initial responsive pleading may be deemed to have waived the defense. The purpose of requiring affirmative defenses to be pleaded is to avoid surprise and to give the opposing party an opportunity to respond. See Blonder-Tongue Lab., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 350, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971); 2 Moore's Federal Practice ¶ 8.07[1].

Plaintiff fails to cite any case law on the issue of whether Title VII's statutory cap must be pleaded as an affirmative defense. Rather, Plaintiff relies on cases in which the courts held that the defendants waived various statutory limitations other than § 1981a(b)(3) by failing to plead the limitations as affirmative defenses. Plaintiff's reliance on these cases is misplaced. In each of the cases Plaintiff cited, the limitations on damages were part of a statutory scheme distinct from the basis of recovery. The courts in those cases held that the caps were affirmative defenses in order to prevent unfair surprise because the caps were not evident on the face of the statutory schemes under which the plaintiffs had brought their claims. See, e.g., Ingraham v. United States, 808 F.2d 1075 (5th Cir.1987) (defendant sought to apply Texas's statutory limitations on medical malpractice damages to reduce plaintiff's recovery under the Federal Tort Claims Act); Knapp Shoes, Inc. v. Sylvania Shoe Mfg. Corp., 15 F.3d 1222 (1st Cir.1994) (defendant sought to limit plaintiff's contractual damages by imposing Massachusetts statutory limitation); Jakobsen v. Massachusetts Port Authority, 520 F.2d 810 (1st Cir.1975) (defendant sought to limit recovery for negligence claim by imposing state statutory limitation); Bentley v. Cleveland County Bd. of County Commissioners, 41 F.3d 600 (10th Cir.1994) (defendant sought to apply Oklahoma law to reduce plaintiff's recovery under the Rehabilitation Act); Westfarm Assocs. Ltd. Partnership v. Int'l Fabricare Inst., 846 F.Supp. 439 (D.Md.1993), aff'd, 66 F.3d 669 (4th Cir.1995) (defendant sought to apply Maryland Local Government Tort Claims Act to reduce award under CERCLA and RCRA); Craddock Int'l Inc. v. W.K.P. Wilson & Son, Inc., 116 F.3d 1095 (5th Cir.1997) (defendant sought to limit liability under insurance policy by invoking statutory limitations of federal Carriage of Goods by Sea Act).

By contrast, the CDA's statutory cap is evident on the face of the statute as a Congressional limitation on the court's power to award damages to a Title VII plaintiff. See Bereda v. Pickering Creek Indus. Park, Inc., 865 F.2d 49, 54 (3d Cir.1989) (construing Title VII's provision limiting back pay liability). No plaintiff claiming damages under Title VII can complain of unfair surprise, prejudice, or lack of opportunity to respond when confronted with the CDA's limitation of damages, because the limitation is part of the same statutory scheme under which the plaintiff has brought his or her claim.

The Supreme Court noted that "[i]t was not until 1991 that Congress made damages available under Title VII, and even then, Congress carefully limited the amount recoverable in any individual case, calibrating the maximum recovery to the size of the employer." Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 286, 118 S.Ct. 1989, 1997, 141 L.Ed.2d 277 (1998). More recently, the Court referred to the cap as one example of "certain conditions and exceptions" set forth in the CDA. West v. Gibson, 527 U.S. 212, ___, 119 S.Ct. 1906, 1909, 144 L.Ed.2d 196 (1999). However, the Court has never referred to a requirement that the cap be pleaded as an affirmative defense or avoidance.

Similarly, the Second Circuit has not referred to Title VII's statutory cap as an affirmative defense. See Luciano v. Olsten Corp., 110 F.3d 210, 221 (2d Cir.1997) ("[I]f the sum of the compensatory and punitive damages awarded by the jury exceeds the relevant cap, the district court reduces the award to ensure that it conforms with subsection (b)(3); that is, that it `[does] not exceed' the relevant cap for an employer of the defendant's size.") (quoting Hogan v. Bangor & Aroostook R.R. Co., 61 F.3d 1034, 1037 (1st Cir. 1995)).

In the only case we have found that addresses the issue directly, Peckinpaugh v. Post-Newsweek Stations Connecticut, Inc., No. 3:96CV2475(AVC), 1999 WL 334838 (D.Conn. Mar. 17, 1999), the court rejected the plaintiff's waiver argument, noting that the only factual issue in the application of the statutory cap is the determination of the size of the employer. Here, there is no factual dispute; the Defendant concedes that it employed at least 500 employees during the relevant period and thus qualifies for the highest level of damages allowable under § 1981a(b)(3)(D).

For the reasons set out above, we hold that the statutory cap set out in § 1981a(b)(3) is not an affirmative defense and is not waivable. Plaintiff's jury award under Title VII must be reduced to $300,000 total for the sum of compensatory and punitive damages.

B. Allocation of Damages

Plaintiff next argues that the damage award should not be reduced because the statutory cap does not apply to Plaintiff's state law claim. Because of the basic differences in the recovery available under Title VII and CFEPA,¹ Plaintiff contends that the $100,000 compensatory damage award as well as a portion of the $500,000 punitive damage award equal to the amount of reasonable attorney's fees and costs of litigating this case should be allocated to her claim under CFEPA, and that the remainder of the punitive damage award should be allocated to her Title VII claim, in order to maximize her recovery.

Defendant, on the other hand, argues that such an allocation of the damage award would constitute a double recovery, since Plaintiff's Title VII and state law claims precisely overlap each other. Defendant in essence argues that Plaintiff should not be permitted to "mix and match" or "cherry-pick" the damages awards and must choose between the two theories of liability.

"Title VII was designed to supplement, rather than supplant, existing laws and institutions relating to employment discrimination." New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 67, 100 S.Ct. 2024, 64 L.Ed.2d 723 (1980) (quoting Alexander v. Gardner-Denver Co., 415 U.S. 36, 48-49, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974)). Congress specifically declined to preempt state human rights law, instead including a savings clause in Title VII which states: "Nothing in this subchapter shall be deemed to exempt or relieve any person from any liability, duty, penalty, or punishment provided by any present or future law of any State ...." 42 U.S.C. § 2000e-7.

It is undisputed that a plaintiff generally may not recover double damages. A plaintiff is entitled to "only a single slice of the pie — but the choice of the slice [is hers]." Freeman v. Package Machinery Co., 865 F.2d 1331 (1st Cir.1988). The Second Circuit has held that "where only a single award of damages, not segregated into separate components, is made, the preferable rule, we think, is that the successful plaintiff be paid under the theory of liability that provides the most complete recovery." Magee v. United States Lines, Inc., 976 F.2d 821, 822 (2d Cir.1992).

The issue here, however, is not duplicative compensatory or duplicative punitive damages. Rather, Plaintiff seeks to allocate two separate forms of damages, compensatory and punitive, between two separate theories of liability, Title VII and CFEPA.

The court has found no authority expressly authorizing or prohibiting such allocation of the damages award. See Luciano v. Olsten Corp., 912 F.Supp. 663, 675 (E.D.N.Y.1996), aff'd on other grounds, 110 F.3d 210 (2d Cir.1997). We note that a handful of other courts considering this issue have permitted...