Haynes v. City of Montgomery, Alabama

Filing 90

MEMORANDUM OPINION AND ORDER denying defendant's 77 MOTION for New Trial or Remittitur and 79 Renewed MOTION for Judgment as a Matter of Law; granting plaintiff's 73 MOTION Equitable Relief; granting plaintiff's 71 MOTION for A ttorney Fees and Expenses and 83 Supplemental MOTION for Attorney Fees and Expenses; that attorney's fees are awarded in the amount of $102,345.00; that litigation expenses are awarded in the amount of $6,382.73; that the parties jointly file a status report and a proposed final judgment in accordance with this order on or before October 24, 2008, as set out. Signed by Honorable William Keith Watkins on 10/6/2008. (Attachments: # 1 Civil Appeals Checklist)(cc, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION E D D IE J. HAYNES, P l a in tif f , v. CITY OF MONTGOMERY, ALABAMA, D e f e n d a n t. ) ) ) ) ) ) ) ) )

CASE NO. 2:06-CV-1093-WKW

M E M O R A N D U M OPINION AND ORDER T h is case is before the court on Defendant's Motion for New Trial or Remittitur (Doc. # 77) and Renewed Motion for Judgment as a Matter of Law (Doc. # 79), as well as P la in tif f 's Motion for Attorney's Fees and Expenses (Doc. # 71), Supplemental Motion for A tto rn e y's Fees and Expenses (Doc. # 83), and Motion for Equitable Relief (Doc. # 73). For th e reasons given below, Defendant's motions will be denied, and Plaintiff's motions will b e granted. I . BACKGROUND P lain tiff Eddie J. Haynes ("Mr. Haynes") brought this action against Defendant City o f Montgomery, Alabama ("the City"), alleging the City had violated the Americans with D isab ilities Act of 1990, 42 U.S.C. §§ 12101 - 12117 ("ADA"), with respect to Mr. Haynes's e m p lo ym e n t. Mr. Haynes alleged three claims under the ADA, all of which survived the C ity's summary judgment motion. (See Doc. # 55.) On March 27, 2008, the jury returned a verdict (Doc. # 67) in favor of Mr. Haynes on the "Regarded As" Having a Disability

c la im , against Mr. Haynes on the Medical Examinations claim, and in favor of Mr. Haynes o n the Qualification Standards claim. The jury found that the City did not prove the business n e c es s ity defense with respect to the Qualification Standards claim. Having found in favor o f Mr. Haynes on two of his three claims, the jury awarded damages to compensate him for a net loss of wages and benefits to the date of the trial in the amount of $90,000 and to co m p en sate him for emotional pain and mental anguish in the amount of $270,000. Mr. H a yn e s immediately requested equitable relief and attorney's fees and costs as pleaded in his c o m p l a in t . The City filed its post-trial motions. The court requested briefing on these issues; th e parties complied. I I . DISCUSSION A. T h e City's Post-Trial Motions T h e City renews its motion for judgment as a matter of law and moves for a new trial o r remittitur. Because the arguments in support of both motions are similar and overlapping, th e court, like Mr. Haynes, will address each of the City's arguments under all of the a p p r o p r ia te standards. 1. S ta n d ar d s a. R e n e w e d Motion for Judgment as a Matter of Law

Ju d g m en t as a matter of law under Rule 50 of the Federal Rules of Civil Procedure is appropriate where "there is no legally sufficient evidentiary basis for a reasonable jury to f in d for the non-moving party." Optimum Techs., Inc. v. Henkel Consumer Adhesives, Inc.,

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4 9 6 F.3d 1231, 1251 (11th Cir. 2007). In deciding a Rule 50 motion, the "proper analysis is squarely and narrowly focused on the sufficiency of the evidence." Chaney v. City of O r la n d o , 483 F.3d 1221, 1227 (11th Cir. 2007). The question is "whether there was su f f icie n t evidence, as a legal matter, from which a reasonable jury could find for the party w h o prevailed at trial." Id. at 1228. The court looks at the record evidence, drawing all in f e re n c e s in favor of the non-moving party. Nurse "Be" v. Columbia Palms W. Hosp. L.P., 4 9 0 F.3d 1302, 1308 (11th Cir. 2007). A renewed motion under Rule 50(b) must be based u p o n the same grounds as the original motion. Chaney, 483 F.3d at 1228 . b. M o tio n for New Trial

T h e court may grant a motion for new trial "for any reason for which a new trial has h e r e t o f o re been granted in an action at law in federal court." Fed. R. Civ. P. 59(a)(1)(A). A party may seek a new trial on grounds that the verdict is against the weight of the evidence, that damages are excessive, o r that, for other reasons, the trial was not fair to the party moving; and may ra is e questions of law arising out of alleged substantial errors in admission or re je c tio n of evidence or instructions to the jury. Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940). c. M o tio n for Remittitur

" In general, a remittitur order reducing a jury's amount to the outer limits of the proof is the appropriate remedy where the jury's damage award exceeds the amount established by th e evidence." Goldstein v. Manhattan Indus., Inc., 758 F.2d 1435, 1448 (11th Cir. 1985).

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2.

" R e g a r d e d As" Having a Disability Claim

T h e City asserts that it is entitled to judgment as a matter of law or to a new trial on th e "Regarded As" Having a Disability claim because there was no evidence that the City re g a rd e d Mr. Haynes as disabled. Specifically, the City argues that Mr. Haynes "never s h o w e d that the allegedly perceived impairment would have been a significant restriction on h is ability to perform a class or broad range of jobs," and the City challenges the sufficiency o f the expert testimony on this element. (Doc. # 79 ¶¶ 6-9; see also Doc. # 78 ¶¶ 7-12.) This is the same argument that the City has made throughout the litigation, and it fails again here. T h e four elements of an ADA discrimination claims are that (1) the employee "had a `disability,'" (2) he "was a `qualified individual,'" (3) he was subjected to an adverse e m p lo ym e n t action, and (4) his "disability was a substantial or motivating factor that p rom p ted the [City] to take that action." (Doc. # 66, at 7, quoting Eleventh Circuit Pattern Ju ry Instructions (Civil Cases) § 1.5.1 (2005)); see also Collado v. United Parcel Serv., Co., 4 1 9 F.3d 1143, 1152 & n.5 (11th Cir. 2005) (quoting with approval Eleventh Circuit Pattern J u ry Instructions (Civil Cases) § 1.5.2 (2005), the elements of which mirror those in § 1.5.1, in the context of analyzing the "correctness" of the district court's Rule 50(b) post-verdict ju d g m e n t for an employer for failure of the employee "to provide sufficient evidence on the d isab ility element of his ADA claim"). T h e ADA defines "disability" as "(A) a physical or mental impairment that s u b s ta n tia lly limits one or more of the major life activities of [an] individual; (B) a record of

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s u c h impairment; or (C) being regarded as having such an impairment."

42 U.S.C.

§ 12102(2) (emphasis added); see also Collado, 419 F.3d at 1154-55 (applying ADA's d e f in itio n of disability). A person is regarded as having such an impairment if an employer e ith e r "mistakenly believes that a person has a physical [or mental] impairment that su b sta n tially limits one or more major life activities" or "mistakenly believes that an actual, n o n lim itin g impairment substantially limits one or more major life activities." Sutton v. U n ite d Air Lines, Inc., 527 U.S. 471, 489 (1999). The latter provision is met where a person is perceived as being significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes. D'Angelo v. ConAgra Foods, Inc., 422 F.3d 1220, 1 2 2 7 (11th Cir. 2005). The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working. Id. T h e evidence at trial showed that (1) the City relied on Dr. Turner to determine w h e th e r Mr. Haynes could return to work; (2) Dr. Turner knew that Mr. Haynes was taking m e d ic a tio n s for Generalized Anxiety Disorder;1 and (3) Dr. Turner would not have released M r. Haynes to work in any safety sensitive position or for any job driving a vehicle due to th e potential side effects of the medications, even though Mr. Haynes did not actually e x p e rie n c e such side effects and did not use the medications while on duty. Thus, Dr. Turner m is ta k e n ly believed that Mr. Haynes's actual, nonlimiting impairment ­ whether it be the p o te n tia l side effects of medications or the underlying anxiety disorder ­ substantially limited
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The City knew about Mr. Haynes's medications as early as January 2003, twenty-six months before Mr. Haynes was placed on leave. (See Pl. Ex. 6.)

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M r. Haynes's major life activity of working in any safety sensitive position. This is the e ss e n c e of a "regarded as" having a disability claim. By sending Mr. Haynes to Dr. Turner an d relying on Dr. Turner's perception in refusing to clear Mr. Haynes for duty, the jury c o u ld have concluded that the City adopted Dr. Turner's perception that Mr. Haynes had a d is a b ility. Dr. Turner's testimony alone may be sufficient to uphold the jury verdict; however, M r. Haynes also presented a vocational expert, Dr. Kessler, who testified that this perceived lim ita tio n would foreclose someone with Mr. Haynes's experience and background from ac ce ss to 182,000 jobs in Alabama ­ a broad range of jobs such as a law enforcement officer, sec u rity guard, EMT, firefighter, construction worker, mason, and hazardous machinery w o rk e r. Dr. Kessler's testimony was undisputed. Based on this evidence, the court cannot co n clud e that "there is no legally sufficient evidentiary basis for a reasonable jury to find for" M r. Haynes. Optimum Techs., Inc., 496 F.3d at 1251. The City's arguments ­ that Mr. Haynes was not actually disabled, that the City did n o t ask about the anxiety disorder and that the City perceived him as unable only to be a M o n tg o m e ry firefighter2 ­ are not relevant to the determination of the ultimate issue.

The City's argument throughout the litigation has been that Mr. Haynes could not prove he was perceived as being unable to perform a broad range of jobs, only that he could prove he was perceived as being unable to be a Montgomery firefighter. From its post-trial motions, the City now seems to be arguing that it perceived Mr. Haynes as able to do all jobs, even his Montgomery firefighting job, notwithstanding the fact that it placed Mr. Haynes on leave and terminated him.

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T h e City further argues that Mr. Haynes did not prove that the City's proffered le g itim a te , nondiscriminatory reason for his termination was pretextual. (Doc. # 78 ¶¶ 18-19; D o c . # 79 ¶ 13.) This argument fails for the following two reasons. First, to the extent the C ity is arguing that the jury should have been charged with an instruction on McDonnell D o u g la s burden shifting, this is not the law of the circuit. See Farley v. Nationwide Mut. Ins. C o ., 197 F.3d 1322, 1333 (11th Cir. 1999) ("once the McDonnell Douglas framework has b e e n met by both parties in the pretrial stages, it `simply drops out of the picture' when the jury begins its deliberations" (citation omitted)). S e c o n d , the court finds that Mr. Haynes carried his burden of proving that d i sc r im in a t io n was a substantial or motivating factor in the adverse employment decisions, the fourth element of his "Regarded As" Having a Disability claim. One of the City's p ro f f e re d reasons for placing Mr. Haynes on involuntary leave and refusing to allow him to c o m e back to work is because of his medications and their possible side effects. In fact, the ju ry was so charged. Mr. Haynes points out, and the court agrees, that the City's admission th a t its decisions were based on possible side effects of medications, coupled with the e v id e n c e that the City failed to make an individualized assessment of Mr. Haynes's present a b i li t y to perform his job and of whether Mr. Haynes was a direct threat, constitutes a su f f icie n t evidentiary basis from which a reasonable jury could conclude that "his disability w a s a motivating factor prompting the City's decisions." (Doc. # 82 at 9-10.)

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T h e City also asserts, without any specificity, that Mr. Haynes's "evidence at trial d e m o n stra ted that the City was treating [him] the same as other firefighters in requiring him to be medically qualified as a firefighter based on the medical standards in NFPA." (Doc. # 80 ¶ 20.) To the extent that the City argues that this "evidence" cuts against Mr. Haynes's p ro o f on the fourth element of his claim, the court disagrees; there was more than sufficient e v id e n c e from which a reasonable juror could find otherwise. For example, contrary to the C ity's conclusory interpretation of the evidence, above, Dr. Turner admitted that others in th e fire department were taking similar medications, but those persons had not been te rm in a te d or placed on leave. (See Pl. Exs. 83, 84 & 85; see also Tr. Test. of Mark Evans.) F in a lly, the City argues that another nondiscriminatory reason is that Mr. Haynes was n o t medically qualified to be a firefighter under NFPA standards. (See, e.g., Doc. # 80 ¶ 18.) T h e court construes this argument as one challenging the second element of the "Regarded A s " Having a Disability claim, i.e., whether the plaintiff is a "qualified individual." The City m u s t have intended to argue that Mr. Haynes was not a qualified individual because he failed to prove that he was not a direct threat or a significant risk to the health or safety of other in d iv id u a ls in the workplace. See LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 836 (1 1 th Cir. 1998) ("The employee retains at all times the burden of persuading the jury either that he was not a direct threat or that reasonable accommodations were available.").

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T h e testimony adduced at trial was that the City believed that Mr. Haynes could pose a "significant risk to the . . . safety," 42 U.S.C. § 12111(3), of his fellow firefighters and the p u b lic . Even if such belief was held in good faith, which is doubtful in light of the evidence,3 it is insufficient because it was "not grounded in medical or other objective, scientific e v id e n c e ." Lowe v. Ala. Power Co., 244 F.3d 1305, 1308 (11th Cir. 2001) (citing Bragdon v . Abbot, 524 U.S. 624, 649 (1998)). In determining that Mr. Haynes was a direct threat, the C ity was required to make "an individualized assessment of the individual's present ability to safely perform the essential functions of the job," which "shall be based on a reasonable m e d ica l judgment that relies on the most current medical knowledge and/or the best available o b je c tiv e evidence." 29 C.F.R. § 1630.2(r). At trial, Dr. Turner admitted that he did not conduct a physical examination of Mr. H ayn es. Dr. Turner testified that he spoke with Mr. Haynes; he had possession of Mr.

The evidence was undisputed that Mr. Haynes was a good firefighter. Three weeks before he was placed on leave, his supervisor commended him: "He knows his territory and stays abreast of his SOPs. He works will [sic] with others and is a good team member. Firefighter Haynes's experience is demonstrated on and off the fire scene. He performs all assignments when given to him. He is neat and punctual." (Pl. Ex. 7.) Assistant Chief C. E. Walker testified he considered Mr. Haynes capable as a firefighter. Lieutenant Tim Health testified that he had known Mr. Haynes for more than fifteen years and that Mr. Haynes did a good job driving, that he was cautious but never refused; that Mr. Haynes was a good firefighter and had no problems with the job requirements; that in drills, Mr. Haynes always performed at least to standards; and that Mr. Haynes never fainted or passed out, nor did he appear drowsy, dehydrated or dizzy. Sgt. Ashley Payton, director of training for the department, testified that Mr. Haynes is a "great firefighter" with no problems doing his job, including driving the truck. Former Montgomery firefighters Barry Nummy and Kyle Miner worked on the same shift as Mr. Haynes for several years. Mr. Nummy described Mr. Haynes as a "very good firefighter" with good work habits, and as a "very good driver, very cautious." They fought fires together and Mr. Haynes did "very well." Mr. Miner, a "dear friend" of Mr. Haynes, told the jury that he had fought fires with Mr. Haynes and had seen Mr. Haynes operate "on the scene." He described Mr. Haynes as "courageous, quick to act" and "very competent."

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H a yn e s's medical records from Mr. Haynes's psychiatrist, Dr. Palmer; and that he believed M r . Haynes and Dr. Palmer when they said that Mr. Haynes was not having any side effects. H e further testified that he believed Mr. Haynes when Mr. Haynes said that he was not taking th e medications while on duty. Dr. Turner's office notes stated that Mr. Haynes "is p h ysic a lly fit to return to duty," but concluded that the City's "administrative decision is n e e d e d " because of concerns about the possible side effects of Mr. Haynes's medications. D r . Turner's knowledge about the possible side effects comes from general prescription in f o rm a tio n , and he did not review and was not aware of any medical studies done on the s id e effects of these medications. He admitted that side effects vary from person to person, b u t he did not do any further testing on Mr. Haynes, nor did he attempt to discuss Mr. H ayn es's possible side effects with Dr. Palmer. D r. Turner's assessment of Mr. Haynes, upon which the City relied, was not in d iv id u a liz e d . It did not purport to assess Mr. Haynes's present ability to safely perform the e ss e n tia l functions of the job. It is not apparent that Dr. Turner's medical judgment was re a so n a b le , especially where he did not rely on the best available objective evidence nor the m o st recent medical knowledge. Dr. Turner admitted that the best information about Mr. H ayn es's ability to safely perform his job is observation of Mr. Haynes doing his job. There w a s no evidence at trial that would support the conclusion that Mr. Haynes had not been s a f ely performing, or could not safely perform, his job as a Montgomery firefighter. The

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o n ly conclusion the jury could have made here is that Mr. Haynes was not a direct threat and w a s in all other ways a qualified individual under the ADA.4 In sum, the court finds that there was sufficient evidence for the jury to find that the C ity's decision to place Mr. Haynes on leave and to terminate him was motivated by Mr. H a yn e s 's perceived disability. Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1 1 9 4 -9 5 (11th Cir. 2004). Thus, the City's motions fail as to the "Regarded As" Having a D is a b ility Claim. 3. Q u a lifica tio n Standards Claim

T h e City also challenges the jury's verdict on the Qualification Standards claim. The C ity states that the medical standards set out in Chapter 6 of the NFPA, which the City has n o t formally adopted, "do, in fact, screen out individuals with disabilities . . . and im p a irm e n ts ." (Doc. # 79 ¶ 18.) The City argues, however, that these standards are job-

The City has taken the position consistently that it was Mr. Haynes's duty to get his doctor and the City's doctor to agree as to a solution or, in the alternative, to otherwise convince the City's doctor to release him to return to work: "When [Mr.] Haynes refused for 15 months to comply with the City's request to have his personal physician work out a way [Mr.] Haynes could be in compliance with the standards, the City had no choice but to deem [Mr.] Haynes as having abandoned his job . . . ." (Doc. # 79, at 5; Doc. # 78, at 7.) "[Y]ou would have to get a release from Dr. Turner on the medication that you are taking in order for you to return to duty . . . ." (Pl. Ex. 36); "[r]esolution remains with [Mr.] Haynes . . . ." (Def. Ex. 9; see also Def. Ex. 5 at 2 ("so that the two physicians can make a recommendation . . . .").) The City utterly failed to inform the jury or the court how Mr. Haynes could compel two private physicians to communicate and agree on anything, or even how he could force his own private physician to "work out a way" to bring him into compliance with the City's request. In fact, it was the City's duty under the law, not Mr. Haynes's, to have an individualized assessment conducted, and the City was so informed by counsel to Mr. Haynes months before this suit was filed and three weeks before Mr. Haynes was terminated. (See Pl. Ex. 40.) No less than six letters over a thirteen-month period were sent to the City by Mr. Haynes's attorney in an attempt to resolve the impasse. The City's failure to conduct an individualized assessment is the operative cause of its current predicament, and its attempt to deflect the blame to Mr. Haynes was soundly rejected by the jury.

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re late d and consistent with business necessity. It argues that it proved its business necessity d e f en s e as a matter of law and that no reasonable jury could have found otherwise. B e c au s e the qualification standard relates to safety, the City had the burden of s h o w in g that Mr. Haynes was a direct threat. Moses v. Am. Nonwovens, Inc., 97 F.3d 446, 4 4 7 (11th Cir. 1996); Rizzo v. Children's World Learning Ctrs., 173 F.3d 254, 259-60 (5th C ir. 1999); 29 C.F.R. Part 1630 App. § 1630.15(b) & (c). As discussed above, there was no e v id e n c e that the City and Dr. Turner determined that Mr. Haynes was a direct threat based o n an individualized assessment of Mr. Haynes's actual present ability to safely perform his job . Based on the evidence, or, rather, the lack thereof, the court cannot conclude that "there is no legally sufficient evidentiary basis for a reasonable jury to find for" Mr. Haynes on this c la im . Optimum Techs., Inc., 496 F.3d at 1251. 4. M itig a tio n

I n its motions, the City argues that Mr. Haynes failed to mitigate his damages because " [ t] h e record reflects that [Mr. Haynes] and his attorney chose to ignore the City's request [ to get the matter resolved], and by doing so, built damages and unnecessary attorney's fees a n d expenses." (Doc. # 80 ¶ 45.) This argument fails for two reasons. F irs t, as to the renewed motion for judgment as a matter of law, this issue has been w a iv e d . The City did not argue failure to mitigate in its earlier Rule 50 motions. Second, as to the other motions, the City presents no law to support its proposition that th e duty to mitigate requires a victim of intentional discrimination to avoid that

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d iscrim inatio n or to begin mitigation efforts prior to termination. The City argues that Mr. H a yn e s "should have cooperated with the request" of the City "to get his medication issue r e so l v e d ." (Doc. # 80 ¶¶ 48-49.) Like Mr. Haynes, the court can only guess what this means. (S e e supra note 4.) Regardless, the evidence is sufficient to support a jury finding that Mr. H a yn e s was reasonably diligent in mitigating his damages and that he acted reasonably the e n tire time the City was giving him the proverbial runaround. Thus, the City has not met its b u rd e n of establishing that Mr. Haynes did not mitigate his damages. See EEOC v. Massey Y a r d le y Chrysler Plymouth, Inc., 117 F.3d 1244, 1251 (11th Cir. 1997) ("While the injured v ictim has a duty to mitigate damages by being reasonably diligent in seeking substantially eq u ivalen t employment, the burden of proving lack of diligence is on the employer."). 5. C lo sin g Argument

T h e City argues that it is entitled to a new trial because Mr. Haynes's counsel implied in his closing argument that Captain Hackett had some animosity for Mr. Haynes by stating e ith e r he "had it out" for Mr. Haynes or he "set up" Mr. Haynes, without there being any ev iden ce of such animosity. The court sustained the City's objection to the statement. Mr. H a yn e s's closing argument as it related to Captain Hackett did not draw another objection. T h e City did not ask the court to admonish the jury, to give a limiting instruction, or to d e c la re a mistrial. Now the City concludes that "the prejudicial effect of the improper and f a ls e allegation made by [Mr. Haynes]'s counsel could not be cured by the Court sustaining th e objection." (Doc. # 78 ¶ 16.)

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A rg u in g matters that are not in evidence is improper. See, e.g., Brooks v. Francis, 716 F .2 d 780, 787 (11th Cir. 1983) ("Attorneys are forbidden from saying anything to the jury to imply that evidence supporting their position exists but has not been introduced at trial."). H o w ev er, considering all of the circumstances, the court finds that Mr. Haynes's counsel's sta tem e n t was not improper. Mr. Haynes's counsel was merely presenting to the jury his c o n c lu s io n or reasonable deduction to be made from the evidence ­ i.e., that Captain Hackett f a lse ly told Mr. Haynes that the administration insisted on Mr. Haynes's letter listing his m e d ic a tio n s in order to cause trouble for Mr. Haynes. See United States v. Morris, 568 F.2d 3 9 6 , 401 (11th Cir. 1978); Keal Driveway Co. v. Car & General Ins. Corp., 145 F.2d 345 (5 th Cir. 1944).5 Even if improper, the argument was not unduly prejudicial and had no e f f e c t on the outcome of the case. 6. J u r y Instructions

T h e City asserts that it is entitled to a new trial because of allegedly erroneous jury in s tru c tio n s , but it fails to identify which instructions it claims are erroneous. Therefore, the m o tio n is due to be denied.

The Eleventh Circuit has adopted all prior decisions of the former Fifth Circuit handed down prior to the c l o s e of business on September 30, 1981, as binding precedent. Bonner v. City of Prichard, 661 F.2d 1206, 1209 ( 1 1 th Cir. 1981) (en banc).

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7.

J u r y Award

T h e City argues that either a new trial or remittitur is warranted because the jury's a w a rd of $90,000 for back pay and $270,000 for mental and emotional anguish was e x c e s s iv e and not supported by the evidence. a. B a c k Pay

T h e City argues that the back pay award of $90,000 is not supported by the evidence a n d should be reduced because Mr. Haynes failed to mitigate his damages. As stated above, th e City has not met its burden of establishing that Mr. Haynes did not mitigate his damages. It is simply insufficient for the City to assert that Mr. Haynes "has known what he needed to d o if he wanted to return to work as a firefighter, but has steadfastly refused to do so," (Doc. # 78 ¶ 33), and that Mr. Haynes "never applied for a firefighting position with any d e p a rtm e n t." (Id. ¶ 36.) The court need not comment further on the City's former argument. B u t to prevail on the latter argument, the City is required to show that "comparable work was a v a ila b le and the claimant did not seek it out." Weaver v. Casa Gallardo, Inc., 922 F.2d 1 5 1 5 , 1527 (11th Cir. 1991), superseded by statute on other grounds, Civil Rights Act of 1 9 9 1 , Pub. L. No. 102-166, § 101, 105 Stat. 1071 (internal quotation marks and citation o m itte d ). "If, however, an employer proves that an employee has not made reasonable efforts to obtain work, the employer does not also have to establish the availability of substantially c o m p a r a b le employment." Id. (internal quotation marks and citation omitted).

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T h e City did not prove that Mr. Haynes did not make reasonable efforts to obtain s u b s ta n tia lly comparable employment. The testimony was that Mr. Haynes looked for e m p l o ym e n t and worked as a security guard at a lesser rate than what he earned as a firef igh ter. Mr. Haynes may never have applied for a firefighting position with another fire d e p a rtm e n t, but the City did not develop the facts on cross-examination or otherwise offer p roo f to reach the conclusion that, for example, nearby fire departments were hiring and Mr. H a yn e s did not apply for those positions. There is no evidence from which one must c o n c lu d e that Mr. Haynes did not make reasonable efforts to obtain comparable work. b. E m o tio n a l Damages

T h e City also argues that emotional damages are effectively capped at $150,000 and th a t the evidence was insufficient to support the $270,000 award for emotional damages. In determining the excessiveness of the award, the court must be "deferential to the f a ct finder because the harm is subjective and evaluating it depends considerably on the d e m e a n o r of the witnesses." Ferrill v. Parker Group, Inc., 168 F.3d 468, 476 (11th Cir. 1 9 9 9 ) (internal quotation marks and citation omitted). Moreover, compensatory damages m a y be inferred from the circumstances surrounding the discrimination and may be proven b y the testimony, but such damages "need not be proven with a high degree of s p e c if ic ity." Id. R e lyin g on language in a district court opinion decided more than eight years ago, see C o p le y v. BAX Global, Inc., 97 F. Supp. 2d 1164, 1172 (S.D. Fla. 2000) ("It is very rare . . .

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f o r any award of non-economic compensatory damages above [$150,000.00] to stand. Thus, $ 1 5 0 ,0 0 0 .0 0 may be viewed as a benchmark figure, above which awards of compensatory d a m a g e s for mental anguish become suspect." (citations omitted)), the City argues that the $ 2 7 0 ,0 0 0 award "greatly exceeds the upper limit that the jury could reasonably find." (Doc. # 78 ¶ 40). However, as Mr. Haynes thoroughly details in his response brief, (Doc. # 82, a t 17-20), Copley is not the law of the circuit, and there is no cap on emotional damages in th is case.6 A lth o u g h the award is 90% of the statutory maximum, the evidence of the emotional d am ag e suffered by Mr. Haynes is sufficient to support the $270,000 award. Mr. Haynes's in ju ry lasted for more than three years, from February 2005, when he was placed on leave, th ro u g h the date of trial. The court agrees with Mr. Haynes that the jury could have inferred th a t Mr. Haynes endured a great deal of emotional distress from being "bounced back and f o rth between the City and Dr. Turner." (Doc. # 82, at 21.) Mr. Haynes further testified that th e loss of his job caused a severe financial strain on him and his family, causing him to have to borrow money, to lose his health insurance, to be threatened with home foreclosure, and to deal with utilities being turned off. Ultimately, Mr. Haynes's marriage fell apart due to th e financial stress, ending in his wife divorcing him. Mr. Haynes's testimony was

The cap on damages specified in 42 U.S.C. § 1981a(b)(3) applies to damages under the ADA. The amount of the cap is dependent on the number of the defendant's employees. Because the City has not raised the issue, the court assumes that the City employs "more than 500 employees in each of 20 or more calendar weeks in the current or preceding calendar year." § 1981a(b)(3)(D). For such entities, the cap on damages is $300,000. Of course, this cap does not affect an award of $270,000.

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c o rro b o ra te d by Dr. Palmer and Dr. Turner, both of whom noted his stress and depression. O n e of Mr. Haynes's co-workers, Ann Cottrell, also testified that Mr. Haynes was so d e p re ss e d that she prayed with him, talked with him on the telephone for hours, and s o m e tim e s bought him lunch. C o n s id e rin g Mr. Haynes's devotion to the job, the length of his employment with the C ity, his satisfactory job performance, the kind and duration of the discrimination, and the e x t e n t of the emotional harm, the court finds that the $270,000 award is justified under these c irc u m s ta n c e s . There is no basis to reduce the damages awarded by the jury. F o r all of these reasons, the City's motions are due to be denied on all grounds. B. M r . Haynes's Motions 1. M o tio n for Equitable Relief

M r. Haynes moves the court for reinstatement or front pay in lieu thereof, p re ju d g m e n t interest, injunctive relief to restore his pension or retirement account to make h im whole, and such other equitable and injunctive relief necessary to make him whole. T h e ADA authorizes the court to award equitable relief to a prevailing plaintiff. F a r le y , 197 F.3d at 1338 (citing 42 U.S.C. § 12117(a)). "[T]he court may enjoin the [defendan t] from engaging in such unlawful employment practice, and order such affirmative a c tio n as may be appropriate, which may include, but is not limited to, reinstatement or hiring o f employees, with or without back pay . . . or any other equitable relief as the court deems a p p ro p ria te." 42 U.S.C. § 2000e-5(g). The goal of the remedial provisions of the ADA is

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" t o make the plaintiff whole, to restore the plaintiff to the economic position the plaintiff w o u ld have occupied but for the illegal discrimination of the employer." Farley, 197 F.3d a t 1338 (internal quotation marks and citation omitted). a. R e in s ta te m e n t or Front Pay

R e in s ta te m e n t is the preferred or presumptive remedy in discriminatory discharge c a se s, unless "discord and antagonism between the parties would render reinstatement in e f fe c tiv e as a make-whole remedy." Id. at 1339 (internal quotation marks and citation o m itte d ). When reinstatement is not feasible or is impracticable or inadequate, front pay s h o u ld be awarded in lieu of reinstatement. Id. However, "the presence of some hostility b e t w e e n the parties, which is attendant to many lawsuits, should not normally preclude a p la in tif f from receiving reinstatement." Id. M r. Haynes seeks reinstatement or, in the alternative, front pay. Mr. Haynes asserts th a t the testimony at trial was that he was a good firefighter and that the City has a need for f ire f ig h te rs . Thus, Mr. Haynes concludes that there is no apparent reason why he should not b e reinstated. In response (Doc. # 76) to Mr. Haynes's motion for equitable relief, the City argues th a t there are "unusual and extraordinary circumstances" that demonstrate that reinstatement is an inappropriate remedy here. The City continues to argue, despite the jury's verdict to th e contrary, that Mr. Haynes poses a "potential risk," that "he does not meet the standards f o r working on the fireline or driving the fire apparatus," and that if he was reinstated, "the

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C ity would be forced to have Mr. Haynes `sit around the kitchen table.'" The City further a rg u e s that not only should Mr. Haynes not be reinstated, but also that he should not be a w a rd e d front pay because he has failed to mitigate his damages. The City suggests that if M r. Haynes is indeed not disabled then he should find employment as a firefighter in a fire d e p a rtm e n t that does not use the same NFPA standards as the City. T h e City is not claiming the existence of hostility between the parties that would re n d e r reinstatement ineffective as a make-whole remedy; instead, the City is clinging to the d e f en s e it unsuccessfully asserted at trial. That is, the City is arguing that it did not perceive M r. Haynes as disabled, that his use of medications posed a risk of danger to himself and the p u b lic, and that he abandoned his job when he did not convince the doctor hired by the City to clear him for duty. The problem with this argument, of course, is that the jury did not buy it. In light of the jury verdict, the court, in fashioning the remedy, considers the tone of the C ity's response to be disconcerting; the City seems to threaten that it will continue to d is c rim in a te against Mr. Haynes if he is reinstated. N e v e rth e le ss , because hostility between the parties has not been established and b e c a u s e other circumstances do not warrant the alternative, reinstatement is proper here. At tria l the Chief agreed that Mr. Haynes was a good firefighter and that the City has a need for f i r e f i g h te rs . Furthermore, no hostility was evident from the testimony, and Mr. Haynes c le a rly wants to be reinstated. Upon due consideration, the court finds reinstatement to be p ro p e r.

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T h e court cautions the City to assess its procedures with respect to fitness for duty exa m inatio n s, particularly with respect to individualized assessments. No doubt, Mr. Haynes w ill have to be evaluated for fitness for duty and will need to undergo training to update his s k ills . Because the jury verdict was for Mr. Haynes and because Mr. Haynes must be made w h o le , the City will be permanently enjoined from further discriminating against Mr. Haynes, s p e c if ic a lly but not exclusively on the basis of perceived disability and qualification stan d ard s. The court will retain jurisdiction in order to enforce its order. b. P r e ju d g m e n t Interest

M r. Haynes seeks an award of prejudgment interest on the jury's back pay award. The C ity argues that prejudgment interest would be a windfall to Mr. Haynes. In determining whether to grant prejudgment interest on a back pay award, the court lo o k s to the National Labor Relations Act ("NLRA") for guidance. EEOC v. Guardian P o o ls , Inc., 828 F.2d 1507, 1512 (11th Cir. 1987) (citing Smith v. Am. Serv. Co. of Atlanta, In c ., 796 F.2d 1430, 1432 (11th Cir. 1986)). Although the Eleventh Circuit has reserved ru lin g on whether the district court has discretion to award prejudgment interest on back pay, " th e r e has been a consistent practice under the NLRA to award interest on back pay awards" a t the prevailing IRS prime rate. Guardian Pools, 828 F.2d at 1512; see also Taylor v. Cent. P a . Drug & Alcohol Servs. Corp., 890 F. Supp. 360, 369 (M.D. Pa. 1995). B e c a u s e "prejudgment interest . . . is an element of complete compensation," Loeffler v . Frank, 486 U.S. 549, 558 (1988) (internal quotation marks and citation omitted), and the

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a m o u n t of interest on the damages award is readily ascertainable, Mr. Haynes is entitled to p re ju d g m e n t interest on his award of back pay. Prejudgment interest shall be computed p u rs u a n t to 28 U.S.C. § 1961, at a rate of 6.07%, compounded annually. c. R e sto ra tio n of Retirement Account

M r. Haynes asks for an order requiring the City to restore his pension and retirement a c co u n t as a part of the relief necessary to make him whole. Specifically, Mr. Haynes asks f o r an amount equal to the City's contribution, which Mr. Haynes was forced to forfeit by w i th d ra w in g his contribution, plus interest and investment gains, conditioned upon Mr. H a yn e s 's repayment of the withdrawn amount. Mr. Haynes also seeks an additional sum e q u a l to what the City would have been required to contribute if Mr. Haynes had been e m p lo ye d between March 2005 and March 2008. The City is opposed to Mr. Haynes's request on the grounds that the Employees' R e tire m e n t System for the City of Montgomery ("Retirement System") is a separate entity, is not a party to this action, and is thus not subject to the court's jurisdiction. The City does n o t otherwise oppose Mr. Haynes's argument. T h e court is required to fashion relief that will make Mr. Haynes whole. See A lb e m a r le Paper Co. v. Moody, 422 U.S. 405 (1975). Reinstatement of pension benefits is p ro p e rly included in equitable relief. See, e.g., Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1 5 4 6 , 1562-63 (11th Cir. 1986) (remanding to the district court for consideration of " a d d itio n s " to the back pay award, including adjustments to the victims' pension plans). The

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R e tire m e n t System need not be a party to this action for the court to order reinstatement of M r. Haynes's pension and retirement benefits. See Darnell v. City of Jasper, Ala., 730 F.2d 6 5 3 , 655-56 (11th Cir. 1984) (citing Washington v. Washington State Commercial Passenger F is h in g Vessel Assoc., 443 U.S. 658, 692-93 n.32 (1979)). The City will be ordered to re im b u rs e Mr. Haynes for any and all contributions that it would have made to his pension a n d retirement account during the time period from the date he was placed on unpaid leave u n til the date of reinstatement. The City will be ordered to make the calculation, taking into a c c o u n t any standard pay raises Mr. Haynes would have earned during the relevant time p e rio d . The City shall make every effort to fully restore the pension and retirement account w ith the Retirement System, conditioned upon Mr. Haynes's repayment of his withdrawn c o n trib u tio n . Mr. Haynes will bear any penalties for the withdrawal. In the event restoration o f the pension and retirement account is legally impermissible, the City shall calculate re im b u rs e m e n t according to the dictates of this paragraph and make a lump sum payment d i re c tly to Mr. Haynes. In sum, Mr. Haynes is entitled to reinstatement to his former position with the City, to g e th e r with all increments in pay and position and benefits that he would have achieved if h e had not been placed on leave without pay and had not been terminated. In addition to the c o m p e n s a to ry damages awarded by the jury, back pay awarded by the jury and prejudgment in te re st on that award, Mr. Haynes is entitled to back pay from the date of the verdict to the d a te of reinstatement, offset by any sums Mr. Haynes has earned in the interim. Furthermore,

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M r. Haynes is entitled to full reinstatement of his pension and retirement account, on the co n d ition he repays his withdrawn contribution. And, to ensure compliance with this order, th e court will retain jurisdiction. 2. M o tio n s for Attorney's Fees and Expenses a. A tto rn e y's Fees

T h e ADA affords the court the discretion to award to the prevailing party "a rea so n ab le attorney's fee, including litigation expenses, and costs." 42 U.S.C. § 12205. Mr. H a yn e s asserts he is the prevailing party and, as such, seeks an award of reasonable a tto rn e y's fees and expenses. The City does not dispute that Mr. Haynes can be deemed a p r e v a ilin g party in the event its post-trial motions are resolved in favor of Mr. Haynes. (D o c . # 75 ¶ 7.) The court concludes that Mr. Haynes is indeed the prevailing party. T h e City further argues that the court should exercise its discretion to deny an award o f attorney's fees, condemning both Mr. Haynes and Mr. Haynes's attorney for failing to re so lv e the matter years ago. (Doc. # 75 ¶¶ 3-4, 6.) Ignoring the irony of this contention, the c o u rt notes that its discretion to award fees is not unfettered. Attorney's fees should be a w a rd e d to the successful plaintiff in an employment discrimination case unless special c i r c u m s ta n c e s are present. N.Y. Gaslight Club, Inc. v. Carey, 447 U.S. 54, 63, 68 (1980); M a r tin v. Heckler, 773 F.2d 1145, 1150 (11th Cir. 1985). The City has not shown special c ir c u m s ta n c e s here, and thus the court will award Mr. Haynes reasonable attorney's fees.

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In calculating reasonable attorney's fees, courts use the lodestar method. The court f irs t must find the lodestar by "multiply[ing] the number of hours reasonably expended on th e litigation by the customary fee charged in the community for similar legal services." A s s 'n of Disabled Ams. v. Neptune Designs, Inc., 469 F.3d 1357, 1359 (11th Cir. 2006). " T h e court may then adjust the lodestar to reach a more appropriate attorney's fee." Id. Mr. H ayn es "bears the burden of establishing entitlement and documenting the appropriate hours a n d hourly rates," including setting out time expenditures "with sufficient particularity so that th e district court can assess the time claimed for each activity." Norman v. Hous. Auth. of C ity of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988). " A reasonable hourly rate is the prevailing market rate in the relevant legal community f o r similar services by lawyers of reasonably comparable skills, experience, and reputation." Id . at 1299. Mr. Haynes seeks compensation at the rate of $250 per hour for work performed o n this case by Attorney Gerald L. Miller and $175 per hour for work performed by Attorney K e ith E. Brashier. These hourly rates are strongly supported by the affidavits of these a tto rn e ys , whose firm is located in Birmingham, Alabama, and by the affidavits of attorneys lo c a te d in Montgomery, Alabama. The City does not challenge these hourly rates as u n re a s o n ab le . The court finds the requested hourly rates reasonable and, following the p ra c tic e of this district, applies these rates for purposes of this fee petition only. Anderson v . Unum Life Ins. Co. of Am., No. 01-894, 2007 WL 604728, at *9 (M.D. Ala. Feb. 22, 2007) (D eM en t, J.) (quotation marks and citation omitted).

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In determining the reasonableness of the number of hours expended by counsel, the co u rt must exclude those hours that are "`excessive, redundant, or otherwise unnecessary.'" N o r m a n , 836 F.2d at 1301 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). "A law ye r may not be compensated for hours spent on activities for which he would not bill a c lie n t of means who was seriously intent on vindicating similar rights." Id. The court should e x c l u d e redundant hours and hours spent on unsuccessful discrete claims. Id. at 1301-02. R e q u e s ts for fees, "[o]bjections[,] and proof" should be "reasonably precise" because "[ g ]en era lize d statements that the time spent was reasonable or unreasonable of course are n o t particularly helpful and not entitled to much weight." Id. at 1301. A tto rn e y Miller billed 326.9 hours and Attorney Brashier billed 70.4 hours through th e filing of Mr. Haynes's post-trial motions, which were ordered by the court. They su p p lem en ted their briefing after the court ordered Mr. Haynes to file a response to the City's p o s t-tria l motions. They billed an additional 30.4 hours and 4 hours, respectively. Reviewing the itemized billing statements submitted in support of the motion for a tto rn e y's fees, the court finds that there are no redundant hours. Furthermore, there can be n o reduction for hours expended on Mr. Haynes's unsuccessful claim because it is not d is c re te . The City makes only a general objection to the hours expended as "unnecessary," (D o c. # 75 ¶ 10), which is wholly insufficient to justify a reduction of the hours. The court fin d s that the hours billed are more than reasonable. Attorney Miller billed less than 30 hours f ro m May 2005 to December 2006 in efforts to avoid litigation with the City. He billed about

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1 0 0 hours through the filing of Mr. Haynes's brief in opposition to summary judgment, ap p rox im at ely 175 hours from summary judgment through trial, and the remaining hours w e re incurred in post-trial matters. Attorney Miller brought in his then-associate, Attorney B ra sh ier , only after it became clear the case would proceed to trial. Considering the length o f trial, the difficulty of the issues presented, travel time, and Mr. Haynes's success, it is so m e w h a t surprising that more hours were not billed. $ 1 0 2 ,3 4 5 .0 0 .7 " If the result was excellent, then the court should compensate for all hours reasonably e x p e n d ed ." Norman, 836 F.2d 1292. Here, the result was excellent, notwithstanding the jury v e rd ic t in favor of the City on one of Mr. Haynes's three ADA claims. The jury awarded the f u ll amount of back pay proved and sought by Mr. Haynes and a significant amount for c o m p e n s a to ry damages. Moreover, in briefing and trial presentation, Mr. Haynes's attorneys w ere both efficient and effective. No adjustment to the lodestar is necessary. Mr. Haynes's a tto r n e ys are entitled to collect $102,345.00 in attorney's fees. b. L itig a tio n Expenses Accordingly, the lodestar is

M r. Haynes also seeks to recover litigation expenses in the amount of $6,577.07. The C ity argues that the recovery of Mr. Haynes's litigation expenses is limited to costs allowable u n d e r 28 U.S.C. § 1920; however, the court is statutorily authorized to award the prevailing

Attorney Miller's portion of the fee is 357.3 hours multiplied by $250 per hour for a subtotal of $89,325.00. Attorney Brashier's portion of the fee is 74.4 hours multiplied by $175 per hour for a subtotal of $13,020.00.

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p a rty his "litigation expenses, and costs." 42 U.S.C. § 12205 (emphasis added). "Section 1 2 2 0 5 's allowance of litigation expenses is much broader than the provisions of § 1920, and it includes expenditures for items that are related to the advancement of the litigation." H a n s e n v. Deercreek Plaza, LLC, 420 F. Supp. 2d 1346 (S.D. Fla. 2006) (internal quotation m a rk s and citations omitted). Mr. Haynes's claimed expenses include expert fees, mileage f o r travel to and from Montgomery, hotel and dinner expenses incurred during trial, supplies f o r exhibit binders, as well as one copy expense, postage for the complaint and one FedEx c h a r g e , and one Westlaw research expense. Excepting the supplies for the exhibit binders, thes e expenses are compensable under § 12205 if not § 1920, and the amounts claimed are r e a so n a b l e .8 The City objects to costs that were "unnecessarily incurred" such as "counsels' m ea ls, lodging and travel expenses," specifically, the "hotel room rented solely for [Mr. H a yn e s's ] attorneys' convenience." (Doc. # 75 ¶ 18.) The court is of the opinion that it is c o n v e n ie n t for everyone, including the court, to have out-of-town counsel stay locally during tria l. Counsel limited their travel to Montgomery and chose modest accommodations and re sta u ra n ts . These expenses are reasonable. Mr. Haynes's attorneys are entitled to collect $ 6 ,3 8 2 .7 3 in litigation expenses.9

Although the exhibit binders were ordered by the court and submitted to the court during trial, the court allowed Mr. Haynes's counsel to retrieve the binders when the trial ended. Thus, reimbursement for the expense of the binders would result in a windfall to counsel. The award is the total amount requested ($6,577.07) less the cost of supplies for exhibit binders ($194.34).
9

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I I I . CONCLUSION A c c o rd in g ly, it is ORDERED that: 1. D e f en d a n t's Motion for New Trial or Remittitur (Doc. # 77) and Renewed

M o tio n for Judgment as a Matter of Law (Doc. # 79) are DENIED; 2. 3. P la in tif f 's Motion for Equitable Relief (Doc. # 73) is GRANTED; P la in tif f 's Motion for Attorney's Fees and Expenses (Doc. # 71) and

S u p p le m en ta l Motion for Attorney's Fees and Expenses (Doc. # 83) are GRANTED; a. b. 4. A tto rn e y's fees are awarded in the amount of $102,345.00; L itig a tio n expenses are awarded in the amount of $6,382.73;

T h e parties shall confer, freely share information and documentation, and

jointly file a status report and a proposed final judgment in accordance with this order on or b e fo r e October 24, 2008. This filing shall include, among other things, the following items: a. b. th e date of Mr. Haynes's reinstatement; th e parties' agreement as to an ADA-compliant fitness for duty

e x a m in a tio n , including the date, the required medical records, the scope of the ex am in atio n , and the name of an independent medical examiner; c. d. th e calculated amount of prejudgment interest on a daily basis; th e amount of back pay through reinstatement; and

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e.

th e amount of the City's contribution to the pension and retirement

ac co u n t, or in the alternative, the amount of the lump sum payment to Mr. H a yn e s in lieu thereof. D o n e this 6th day of October, 2008. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE

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