Your client asked for reasonable accommodations/modifications and was retaliated against for doing so. Let’s assume that the retaliation is fairly obvious. The question becomes when you file a retaliation claim are you going to be able to get compensatory and punitive damages? Might it depend upon the title or law that you are suing under? The answer to that question is yes! And is the subject of this blog entry. As is my usual practice, I have broken down the blog entry into different parts: the argument that compensatory and punitive damages are not allowed for retaliation claims under title I of the ADA; the argument that compensatory and punitive damages are allowed for retaliation claims under title I of the ADA; the question of whether compensatory and punitive damages are allowed for retaliation claims under title II of the ADA; the question of whether compensatory and punitive damages are allowed for claims alleging violation of § 501 of the Rehabilitation Act; and takeaways. Of course, the reader is free to focus on any or all of the categories.

I
Title I of the ADA: The Argument That Compensatory and Punitive Damages Are Not Allowed For Retaliation Claims

The leading case saying that compensatory and punitive damages are not allowed for a retaliation claim involving title I of the ADA is Kramer v. Banc of America Securities, LLC 355 F.3d 961 (7th Cir. 2004). The Seventh Circuit reasoned that if you trace the ADA out in terms of the remedies that are described for retaliation with respect to title I of the ADA, the inescapable conclusion is that punitive and compensatory damages, i.e. legal remedies, are not mentioned. Accordingly, compensatory and punitive damages are not possible. As pointed out by the Seventh Circuit in this case, that also means a retaliation claim based on title I of the ADA does not contain within it a right to a jury trial unless the defendant consents and that consent is not withdrawn.

II
Title I of the ADA: the Argument That Compensatory and Punitive Damages Are Allowed For Retaliation Claims

Kramer is gaining wide acceptance, but not everywhere. The contrary view comes from the Western District of Tennessee in the case of Baker v. Windsor Republic Doors, 635 F. Supp. 2d 765 (W.D. Tenn. 2009). In this case, the Western District of Tennessee admitted that if you trace out the ADA in terms of the remedies that are described for retaliation with respect to title I of the ADA, you do reach the conclusion that compensatory damages are unavailable for ADA claimants alleging retaliation under title I of the ADA. However, the Western District of Tennessee felt that such a result should not be controlling if it produces a result that is absurd or contrary to other provisions of the ADA. The Western District of Tennessee then proceeded to rely on a US Supreme Court decision, Gomez-Perez v. Potter, 553 U.S. 474 (2008), where the Supreme Court of the United States held that where a statute provides remedies for intentional discrimination, it also necessarily includes retaliation in that calculus even where retaliation is not explicitly mentioned. Accordingly, the Western District of Tennessee reasoned since retaliation and intentional discrimination are both intentional discrimination, it would be an absurd result to hold that Congress intended compensatory damages to be available only under title I of the ADA but not under its retaliation provision.

III
With Respect to Compensatory and Punitive Damages under Title I of the ADA For Retaliation Claims, Who Is Right?

Baker is based upon Gomez-Perez and in particular the proposition that a claim of retaliation is not conceptually different from a claim of discrimination. However, that proposition may no longer be good law because a fundamental premise of the reasoning in University of Texas Southwestern Medical Center v. Nasser, as we have already discussed in this blog entry, is that retaliation and discrimination are conceptually very different from each other. Even so, the counter to that argument with respect to compensatory and punitive damages, would be that since both retaliation and intentional discrimination are intentional discrimination, the remedies shouldn’t be different. How will this shape up? Ultimately, the United States Supreme Court is going have to answer this question. The swing vote? You guessed it: Justice Alito! (Bet you didn’t see that coming:-) . I say that for three reasons. First, Justice Alito had a very straightforward record of deciding disability discrimination cases while he was on the Court of Appeals. Second, he is the author of the Gomez-Potter decision. Finally, it may come as a surprise, but Justice Kennedy when it comes to disability discrimination cases, has not been the swing vote, rather it was Justice Sandra Day O’Connor.

IV
With Respect to Compensatory and Punitive Damages under Title II of the ADA Are Compensatory and Punitive Damages Allowed for Retaliation Claims?

Taking the easy question first, punitive damages are not going to be allowed for a retaliation claim involving a violation of title II of the ADA. The United States Supreme Court in Barnes v. Gorman, 536 U.S. 181 (2002), made it clear that punitive damages are not allowed for violation of title II of the ADA or for violation of § 504 of the Rehabilitation Act.

However, with respect to compensatory damages, you get a different answer because the remedies of title II of the ADA trace back to the remedies for violating § 504 of the Rehabilitation Act, which does allow for compensatory damages providing, as we have discussed, if the plaintiff can show deliberate indifference.
See Bennett v. Board of Education Joint Vocational School District, 2011 U.S. Dist. Lexis 116412 (S.D. Ohio, October 7, 2011) (holding that Kramer does not apply to Title II of the ADA).
V
With Respect to Compensatory and Punitive Damages under § 501 of the Rehabilitation Act, Are Compensatory and Punitive Damages Allowed for Retaliation Claims

With respect to punitive damages, Barnes v. Gorman would seem to preclude that. With respect to compensatory damages, the answer is very much up in the air and here’s why: On the one hand, § 501 is a part of the Rehabilitation Act which allows for compensatory damages and retaliation is intentional discrimination. On the other hand, § 501 relates back to Title I of the ADA both in its statute and in its implementing regulations. Therefore, it might be possible to argue the logic of Kramer.

VI

Takeaways:

1. Retaliation claims always relate back to the underlying law involved. Therefore, the answer to whether compensatory and punitive damages are allowed for a retaliation claim involving violating the ADA, is going to depend upon the particular title and/or law involved.

2. For a nonfederal employee alleging retaliation, that person can expect the defense to argue per Kramer that compensatory and punitive damages are not available. Plaintiff will counter with Baker v. Windsor Republic Doors and Gomez-Potter. Ultimately, the Supreme Court will have to figure it out.

3. With respect to a claim of retaliation alleging a violation of title II of the ADA or § 504 of the Rehabilitation Act, compensatory damages are likely to be allowed but punitive damages are definitely out.

4. With respect to a federal employee, arguments exist both ways.

5. In short, for anybody alleging retaliation for violating title I of the ADA, title II of the ADA, § 501 of the Rehabilitation Act, one can expect defense attorneys to litigate the question of whether compensatory damages are available for a retaliation claim. In the case of a title I claim, one can also expect litigation over whether punitive damages for retaliation claim are available. With respect to title II of the ADA and §§ 501, 504 of the Rehabilitation Act, it is hard to believe that compensatory damages would not be allowed for retaliation claims, but we do know that punitive damages are out. In a nutshell, a plaintiff alleging retaliation can expect litigation over the remedies that the plaintiff will receive if the retaliation claim is successful.

4 Responses to Can You Get Compensatory and Punitive Damages in ADA Retaliation Claims

In Vaughan v. World Changers Church International, 2014 U.S. Dist. LEXIS 141912 (N.D. GA, September 16, 2014), the northern district of Georgia held that retaliation claims under the ADA do not support compensatory and punitive damages relying on Kramer . They did find that the retaliation claim could go forward even though the plaintiff was not found to be a person with an actual disability or found to be a person whom the employer regarded as having a disability since to establish a retaliation claim you do not have to be a person with a disability. Also, they found a causal connection existed because when it comes to a retaliation claim, the plaintiff only has to demonstrate that the protected activity and the adverse action were not wholly unrelated. What is interesting about the causation discussion is that University of Texas Southwestern Medical Center v. Nassar, which held that but for causation is the standard for retaliation claims for civil rights violations, does not get mentioned in this opinion.

Takeaways:

1. Another court has decided that compensatory and punitive damages are not available for retaliation claims.

2. If on the defense side, I would not ignore University of Texas Southwestern Medical Center v. Nassar because while it is true that a causal connection with respect to retaliation only requires a plaintiff to demonstrate that the protected activity in the adverse action were not wholly unrelated, that doesn’t mean that University of Texas Southwestern Medical Center v. Nassar does not apply as well. I do not know why the but for causation standard didn’t come up in this case.

3. While we do not have it yet, I do anticipate that eventually there will be a split among the circuits on the question of whether compensatory and punitive damages are allowable for retaliation claims under the ADA. This is particularly so since you have Justice Alito, as mentioned in the main blog entry, on record as saying that retaliation is intentional discrimination. Since that is the case, you could argue that the remedies should be the same since both causes of action are intentional discrimination. On the other hand, we also know, as discussed in the blog entry, referenced above, talking about University of Texas Southwestern Medical Center v. Nassar, that retaliation claims are at least in some sense a different kind of claim than the claim that a person was discriminated against in violation of his or her civil rights.

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