Equal Employment Opportunity Commission v. CRST International, Inc. et al
Filing
110
ORDER granting in part and denying in part 54 Motion for Summary Judgment; granting 77 Motion to Strike ; denying 84 Motion for Partial Summary Judgment; denying 93 Motion for Leave to File ; granting in part and denying in part 102 Motion to Expedite. Signed by Judge CJ Williams on 12/7/2018. (sam)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff,
No. 17-cv-129-CJW-KEM
vs.
CRST INTERNATIONAL, INC.; and
CRST EXPEDITED, INC.,
ORDER
Defendants.
___________________________
I.
TABLE OF CONTENTS
BACKGROUND ..................................................................... 2
II.
MOTION TO AMEND ANSWER................................................ 5
III.
MOTIONS TO STRIKE ............................................................ 12
A.
Applicable Law............................................................... 14
B.
Conciliation Letter ........................................................... 15
1.
2.
C.
IV.
Waiver of Confidentiality .......................................... 17
Federal Rule of Evidence 408 ..................................... 20
Defendants’ Supplemental Summary Judgment Brief .................. 20
MOTIONS FOR SUMMARY JUDGMENT .................................... 24
A.
Summary Judgment Standard ............................................. 24
B.
Substantive Law ............................................................. 26
C.
Discussion .................................................................... 27
1.
2.
Retaliation and Interference ....................................... 30
3.
V.
Discrimination....................................................... 28
Damages and Jury Demand ....................................... 32
CONCLUSION ....................................................................... 37
This matter is before the Court on a multitude of motions: 1) cross motions for
summary judgment (Docs. 54, 84); 2) plaintiff’s timely filed Motion to Strike Pages 6970 of CRST’s Supplemental Appendix in Support of CRST’s Motion for Summary
Judgment As Well As Any Related Argument and Responses to EEOC’s Additional
Facts[,] Which Cite to or Reference Pages 69-70 of CRST’s Supplemental Appendix and
to Bar Any Future Submission of “Anything Said or Done During Conciliation” (Doc.
77); 3) plaintiff’s timely filed Amended Second Motion to Strike Documents and
Arguments Related to “Anything Done or Said During Conciliation” and Motion for
Protective Order Barring Any Future Submission of the Same (Doc. 102); and 4)
defendants’ Amended Motion for Leave to File Amended Answer (Doc. 93). The parties
timely briefed each of the motions and provided supplemental briefing in accordance with
Court order.
The Court’s rulings are as follows: 1) defendants’ motion for summary judgment
(Doc. 54) is granted in part and denied in part; 2) plaintiff’s motion for partial
summary judgment (Doc. 84) is denied; 3) plaintiff’s first motion to strike (Doc. 77) is
granted; 4) plaintiff’s second motion to strike (Doc. 102) is granted in part and denied
in part; and 5) defendants’ motion to amend their answer (Doc. 93) is denied. The
Court’s analysis will first address defendants’ motion to amend (Doc. 93) before turning
to the motions to strike (Docs. 77, 102) and will conclude with the cross motions for
summary judgment (Docs. 54, 84).
I.
BACKGROUND
The Equal Employment Opportunity Commission (“plaintiff”) brought this action
against defendants under Titles I and V of the Americans with Disabilities Act (“ADA”)
and Title I of the Civil Rights Act. (Doc. 19, at 1). As set forth in plaintiff’s Amended
Complaint, plaintiff brought this action
2
to correct unlawful employment practices on the basis of disabilities and to
provide appropriate relief to [L.L.], a qualified individual with a disability
who was adversely affected by such practices. As alleged with greater
particularity below, Defendants refused to hire [L.L.] as a truck driver
because of his disabilities, refused to accommodate his disabilities, and
retaliated against him when he requested the use of a prescribed emotional
support/service dog as an accommodation for his Post-Traumatic Stress
Disorder and mood disorder.
(Id.). Plaintiffs further alleged that all conditions precedent to filing suit in the instant
case had been fulfilled. (Docs. 19, at 4; 42, at 4-5). 1
Plaintiff alleges that L.L. is a qualified individual under the ADA and that L.L
suffers from impairments that are considered disabilities under the ADA, including posttraumatic stress disorder and mood disorder, which affect plaintiff’s major life activities,
including sleep, brain function, and ability to think. (Doc. 19, at 4). Plaintiff further
alleges that L.L.’s psychiatrist “prescribed an emotional support/service animal to assist
[L.L.] in coping with his disabilities and to maintain appropriate social interactions and
workplace functions.” (Id.).
L.L. applied for employment as a commercial truck driver with defendants and,
at some point during the employment process, requested that he be permitted to have his
dog on the truck with him while driving so that the dog could provide emotional support.
(See Docs. 19, at 4-5; 42, at 6). Plaintiff alleges that defendants denied L.L.’s request
to have his dog accompany him while driving, that L.L.’s request was a request for a
reasonable accommodation, and that defendants refused to hire L.L. as a result of L.L.’s
disabilities and need for an accommodation. (Doc. 19, at 4-5).
1
As is explained below, the parties contest whether all conditions precedent were satisfied prior
to plaintiff bringing suit. Defendants are, however, bound by their admission that all conditions
precedent were satisfied. The Court’s analysis on this issue is set forth in detail infra.
3
Plaintiff asserts that defendants’ refusal to hire L.L. constituted a violation of
L.L.’s civil rights and the rights granted to L.L. under the ADA. As such, plaintiff filed
suit requesting that the Court:
A.
Grant a permanent injunction enjoining Defendants, their
officers, agents, servants, employees, attorneys, and all persons in active
concert or participation with them, from discriminating against qualified
individuals with disabilities who use a service animal or emotional support
animal.
B.
Order Defendants to institute and carry out policies, practices,
and programs which provide equal employment opportunities for qualified
individuals with disabilities, and which eradicate the effects of its past and
present unlawful employment practices.
C.
Order Defendants to make [L.L.] whole by offering him
employment as a truck driver.
D.
Order Defendants to make [L.L.] whole by providing
appropriate back pay with prejudgment interest in amounts to be determined
at trial, and any other affirmative relief necessary to eradicate the effects of
its unlawful employment practices.
E.
Order Defendants to make [L.L.] whole by providing
compensation for past and future pecuniary losses resulting from the
unlawful employment practices described in this Complaint in amounts to
be determined at trial.
F.
Order Defendants to make [L.L.] whole by providing
compensation for past and future non-pecuniary losses resulting from the
unlawful practices described in this Complaint, including but not limited to
emotional pain, suffering, inconvenience, loss of enjoyment of life, and
humiliation, in amounts to be determined at trial.
G.
Order Defendants to pay [L.L.] punitive damages for its
malicious and reckless conduct, as described herein, in amounts to be
determined at trial.
H.
Grant such further relief as the Court deems necessary and
proper in the public interest.
I.
Award [plaintiff] its costs in this action.
(Doc. 19, at 6-7).
4
II.
MOTION TO AMEND ANSWER
The deadline to amend pleadings in this case was initially September 18, 2017.
(Doc. 29, at 1).
After plaintiff filed its amended complaint, defendants sought an
extension of the deadline to file a responsive pleading. (Doc. 39). The Court granted
that motion and set November 29, 2017, as the deadline for defendants “to file their
Answer or otherwise plead in response to the Amended Complaint.”
(Doc. 40).
Defendants timely filed an answer on November 29, 2017. (Doc. 42). On October 9,
2018, defendants filed their Amended and Substituted Motion for Leave of Court to File
Amended Answer and appended their amended answer to the motion. (Docs. 93; 93-1).
Because the time for amending pleadings has expired, permitting defendants to amend
their answer would require a modification of the scheduling order. The Court will
therefore treat defendants’ motion as one for modification of the scheduling order.
In support of their motion to amend their answer, defendants state that plaintiff
produced discovery on April 2, 2018, and that the discovery contained certain of L.L.’s
medical records, which, defendants argue, show that L.L. was not qualified to be a truck
driver for defendants. (Doc. 93, at 1-2).2 Defendants further argue that L.L. was
deposed on May 18, 2018, which further alerted defendants to L.L’s disqualifying
medical history. (Doc. 108, at 2). As will be discussed in greater depth infra, this
alleged showing led defendants to argue that all conditions precedent to filing the instant
suit were not satisfied prior to plaintiff bringing suit. (Docs. 93; 108, at 3-4). In their
Answer to Amended Complaint, however, in response to plaintiff’s assertion that “[a]ll
conditions precedent to the institution of this lawsuit have been fulfilled,” defendants
“[a]dmitted that ADA’s required pre-suit process was completed before this lawsuit was
filed, but denied that there is any factual or legal basis for the lawsuit.” (Doc. 82, at 42
A number of filings appear on the docket only in redacted form. Where this is the case, the
parties have provided the Court with the unredacted filings for in camera review.
5
5). Defendants now seek to amend their Answer to Amended Complaint to “[d]en[y]”
that “[a]ll conditions precedent to the institution of this lawsuit have been fulfilled.”
(Doc. 93-1, at 5).
When, as here, leave of court is required to amend a pleading, “[t]he court should
freely give leave when justice so requires.” FED. R. CIV. P. 15(a)(2). Federal Rule of
Civil Procedure 16(b)(4), however, provides that “[a] schedule may be modified only for
good cause and with the judge’s consent.” Further, Federal Rule of Civil Procedure 6(b)
provides that where a party seeks to extend a deadline that has already passed, the Court
may extend the deadline upon a showing of good cause, “if the party failed to act because
of excusable neglect.” FED. R. CIV. P. 6(b).
“The interplay between Rule 15(a) and Rule 16(b) is settled in this circuit.”
Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 716 (8th Cir. 2008). “[I]f a party files
for leave to amend outside of the court’s scheduling order, the party must show cause to
modify the schedule.” Id. (emphasis in original) (citations and internal quotation marks
omitted). “When a party seeks to amend a pleading after the scheduling deadline for
doing so, the application of Rule 16(b)’s good-cause standard is not optional.” Id. “The
primary measure of good cause is the movant’s diligence in attempting to meet the
[scheduling] order’s requirements.” Id. (citation and internal quotation marks omitted).
“While the prejudice to the nonmovant resulting from modification of the scheduling
order may also be a relevant factor, generally, [the Court] will not consider prejudice if
the movant has not been diligent in meeting the scheduling order’s deadlines.” Id. at 717
(citation omitted).
As the deadline to amend pleadings was in 2017—well before defendants’ motion
to amend was filed—the Court is bound by Sherman’s requirement that defendants show
good cause for modification of the deadline to amend pleadings. Defendants assert that
good cause exists to permit the amendment because defendants could not have known of
6
the basis for the amendment until April or May 2018, when defendants contend that they
learned that plaintiff allegedly failed to investigate L.L.’s allegations of discrimination.
(Docs. 93, at 1-2; 108, at 5).
Specifically, defendants assert that plaintiff never
investigated L.L.’s medical history prior to filing suit and, as a result, defendants argue
that plaintiff did not attempt to conciliate the instant claims in accordance with the ADA’s
requirements. (Doc. 93, at 2). Defendants further assert that they first became aware of
plaintiff’s alleged failure to investigate and conciliate when defendants propounded
requests for production that sought L.L.’s medical records and plaintiff had to request
those records from the medical providers directly.
(Id., at 1-2).
Had plaintiff
investigated the claims prior to bringing suit, defendants argue, plaintiff would have had
those medical records in plaintiff’s possession at the time the requests for production
were propounded. (Id.).
In response, plaintiff contends that at the time defendants filed their answer,
defendants should have known of the basis for defendants’ argument that all conditions
precedent had not been satisfied. (Doc. 105, at 14-15). Plaintiff bases this contention
on defendants having received plaintiff’s pre-suit investigation file on June 30, 2017,
approximately five months prior to the date on which defendants filed their answer. (Id.).
Plaintiff does not argue that it received or reviewed the subject medical records prior to
defendants requesting the records during discovery.
To the best of the Court’s
understanding, plaintiff’s argument is that the absence of L.L.’s medical records in the
pre-suit investigation file should have alerted defendants to the potential availability of
the conditions precedent defense. As such, the Court understands plaintiff to argue that
defendants should have been made aware of this defense on June 30, 2017, at the latest.
The Court disagrees with plaintiff’s argument that the absence of L.L.’s medical
records in the pre-suit investigation file should have alerted defendants to the potential
existence of the conditions precedent defense. Defendants’ argument is that the medical
7
records revealed that L.L. had a psychiatric history that would have disqualified L.L.
from driving commercially, but that plaintiff was unaware of this psychiatric history
because plaintiff failed to adequately investigate L.L.’s claims of discrimination. (Doc.
93, at 1-2). Further, defendants contend that they were made aware of the alleged lack
of an investigation only upon receiving L.L.’s medical records, which revealed the
existence of L.L.’s psychiatric history. (Id.). Without these records, defendants argue
that they had no reason to suspect any deficiencies in the investigatory process. (Id., at
2).
The Court finds that defendants have shown good cause for failure to move to
amend their answer prior to May 18, 2018, the date on which defendants deposed L.L.
regarding L.L.’s medical records. (Doc. 108, at 2). This case presents a scenario in
which defendants could not have known of the full relevance of the medical records
without having had the opportunity to view the records themselves. That is, defendants
may have been aware that L.L. had previously received psychiatric treatment, but in the
absence of the records, defendants could not have been aware that the records allegedly
contained information that would have shown that L.L. was not qualified to be a
commercial driver.
Further, until defendants received the records and this information was revealed,
defendants could not have known that plaintiff allegedly failed to investigate L.L.’s claim.
It was only upon receiving the records that defendants were able to determine that the
records were materially relevant to L.L.’s qualification as a driver and that plaintiff had
not previously sought the information contained therein. As such, the Court finds that
defendants have established good cause for not bringing their motion to amend prior to
the date on which the records were produced. The Court further finds that defendants
would have been justified in waiting to bring their motion until after deposing L.L. and
receiving elaboration and clarification regarding the records. The Court therefore finds
8
that defendants have shown good cause for not bringing their motion prior to May 18,
2018.
Defendants have offered no explanation, however, for the nearly five-month gap
between L.L.’s deposition on May 18, 2018, and October 8, 2018, the date on which
defendants brought the instant motion. (Docs. 90, 93, 95). 3 Instead, defendants argue
that they exercised due diligence in raising the defense by raising plaintiff’s alleged “noncompliance with the ADA’s pre-suit requirements” in defendants’ reply brief in support
of their motion for summary judgment. (Doc. 108, at 3-4). The reply brief was filed on
July 17, 2018—two months after defendants deposed L.L. (Doc. 75). 4 Defendants’
argument essentially amounts to an assertion that the delay in bringing the motion to
amend was only two months and that by acting within two months of becoming aware of
the potential applicability of the defense, defendants acted diligently. The Eighth Circuit
Court of Appeals has, however, rejected this rationale.
In Sherman, the Eighth Circuit found that raising a defense for the first time during
summary judgment briefing in spite of having had the information forming the basis for
3
Defendants first brought their motion to amend on October 8, 2018. (Doc. 90). That motion
was stricken from the docket (Doc. 95), and a redacted version of the same motion was filed on
October 9, 2018 (Doc. 93). The motion filed on October 9, 2018, is identical to the motion filed
on October 8, 2018, aside from certain information being redacted in the later filing. For
purposes of calculating time in this section, the Court will consider the motion to have been filed
on October 8, 2018.
4
On July 13, 2018, defendants filed a motion to file their overlength reply brief. (Doc. 72).
That same day, defendants filed their overlength reply brief and accompanying attachments.
(Doc. 73). On July 17, 2018, the Court granted defendants’ motion to file their overlength reply
brief. (Doc. 74). As such, even though the proposed overlength brief appeared on the docket
on July 13, 2018, the brief was not considered docketed until the Court granted the motion for
overlength brief. The slight lapse in time that occurred between the date on which defendants
filed their motion to file an overlength brief, and the date on which the Court granted the motion
is immaterial to the Court’s present analysis.
9
the defense does not indicate diligence, but, rather, may indicate a lack of diligence. 532
F.3d at 717-18. Further, the facts in the instant case are similar to those in Sherman, in
which the Eighth Circuit explicitly found that the timeline of the relevant pleadings
“provide[d] no support for a finding of good cause.” Id. at 717. The Eighth Circuit set
forth the timeline as follows:
Even though preemption is a purely legal defense based on readily available
federal law, [movant] waited to seek leave to plead the affirmative defense
until two and a half years after the suit was filed; a month after the close of
discovery; a month after it raised the defense in its summary judgment
motion; almost eighteen months after the deadline for amending pleadings;
and eight full months after it was actually aware of the preemption defense’s
applicability.
Id. Here, defendants waited to seek leave to amend their answer until more than one and
one-half years after the suit was filed (Doc. 1); four months after the close of discovery;5
three months after defendants contend they raised the defense in their summary judgment
reply brief; one year after the deadline to amend pleadings; and five months after
defendants should have become aware of the applicability of the defense.
Although the timeline in the instant case is not identical to the timeline in Sherman,
it is similar enough that the Court cannot ignore Sherman’s dictate that a district court
abuses its discretion when it permits a party to amend its answer such a lengthy time after
the deadline to amend pleadings has passed. Here, defendants have not offered any
explanation for the five-month delay between the date on which they should have become
5
The Court notes that discovery was reopened to allow two witnesses to be deposed on a narrow
set of topics. (Doc. 78, at 4-9). The motion to reopen discovery, however, was filed after
defendants should have become aware of the applicability of the conditions precedent defense.
(See Doc. 52). Further, the limited purpose for which discovery was reopened has no bearing
on the conditions precedent defense. Thus, for purposes of assessing defendants’ diligence and
ability to show good cause, the Court will treat June 1, 2018, as the deadline for completion of
discovery. (Doc. 46).
10
aware of the applicability of the defense and the date on which they moved to amend their
answer. Where such a significant gap is present and a party has failed to make a showing
of good cause, binding precedential authority precludes this Court from permitting a
defendant to amend its answer. Likewise, defendants have not argued that they failed to
bring their motion sooner due to excusable neglect, and the Court finds that no such
excusable neglect is present here.
Aside from the slight timing differences indicated above, the Court notes that the
Sherman court was addressing a motion to amend an answer to assert an affirmative
defense. 532 F.3d at 712. In a Title VII action, such as this one, plaintiff is tasked with
asserting that all conditions precedent to the suit have been fulfilled. See Jessie v. Potter,
516 F.3d 709, 713 n.2 (8th Cir. 2008) (declining to offer an opinion on whether the
defense of failure to satisfy conditions precedent in the Title VII context is an affirmative
defense, but stating that conditions precedent defenses “may” be affirmative defenses);
see also EEOC v. Eagle Iron Works, 367 F. Supp. 817, 822-23 (S.D. Iowa 1973)
(indicating that the plaintiff in a Title VII action must affirmatively plead that all
conditions precedent have been satisfied).
As such, a plaintiff must plead that all
conditions precedent have been satisfied as part of plaintiff’s prima facie case. Although
the Eighth Circuit has declined to comment on whether failure to satisfy conditions
precedent is an affirmative defense, the Court will assume, in arguendo, that such a
failure is not an affirmative defense. Assuming as such, Sherman is distinguishable to
the extent it considered a motion to amend to assert an affirmative defense. Even
assuming such a distinction exists, this slight deviation in the facts is not material and
does not lend support to defendants’ untimely motion to amend.
Finally, defendants assert that each of the multitude of cases plaintiff cites in its
resistance is distinguishable in some material respect. (Doc. 108, at 6). Without reaching
11
the merits of whether defendants’ assertion is accurate, 6 the Court finds that Sherman
instructs the Court to deny defendants’ motion. Significantly, although defendants urge
that Sherman is distinguishable from the instant case, defendants do not point to a case
that would support granting defendants’ motion in light of the five-month lapse between
the date of L.L.’s deposition and the date on which defendants filed their motion. The
Court finds that the slight differences in timing between the instant case and Sherman are
not material enough to meaningfully distinguish Sherman. Defendants’ motion to amend
their answer (Doc. 93) is, therefore, denied.
Defendants’ admission in their answer that the “ADA’s required pre-suit process
was completed before this lawsuit was filed” (Doc. 84, at 4-5), will be treated as a binding
admission, including during the Court’s consideration of the pending motions for
summary judgment. Mo. Hous. Dev. Comm’n v. Brice, 919 F.2d 1306, 1314-15 (8th
Cir. 1990) (finding that admissions in a complaint are binding even where the admitting
party later produces evidence contrary to those admissions and, further, treating the
admissions as binding when considering summary judgment). In light of this binding
admission, the Court finds that defendants are not entitled to summary judgment based
on the argument that all conditions precedent to the instant suit were not satisfied prior
to plaintiff filing its complaint. No additional discussion of the conditions precedent
defense is necessary herein.
III. MOTIONS TO STRIKE
Plaintiff has filed two motions to strike that are currently pending before the Court.
(Docs. 77, 102). Both motions are similar in nature and will be considered together.
The Court previously entered an Order directing the Clerk of Court to seal the pages at
issue until such time as the Court could rule on the pending motions to strike. (Doc. 80).
6
Sherman, which the Court discusses extensively, is one of the cases that defendant argues is
distinguishable from the instant case. (See Doc. 108, at 6).
12
Plaintiff has also requested a protective order, but plaintiff has not provided the
Court with a proposed order or with proposed terms to be included or addressed in the
order. Absent such guidance, the Court declines to enter a protective order. Plaintiff’s
request for a protective order, as submitted, is denied. Plaintiff may meet and confer
with defendants then either file a new motion for a protective order, which contains
proposed terms, or file a new motion for a protective order and submit a proposed order
to the Court simultaneously therewith. The Court’s preference is for the parties to meet
and confer prior to filing a joint motion for a protective order and submitting a joint
proposed protective order contemporaneously therewith.
The motions contain two categories of materials that plaintiff seeks to have
stricken. First, plaintiff seeks to have stricken certain pages contained in defendants’
appendices to defendants’ summary judgment briefing. (Docs. 77-1, at 1-2; 102-1, at 23). The pages at issue allegedly “contain[ ] documents describing things that were said
and done during conciliation negotiations.” (Docs. 77-1, at 1-2; see also 102-1, at 2-3).
Second, plaintiff seeks to have stricken “any related argument or references to [the
aforementioned documents] in [defendants’ briefs].” (Docs. 77-1, at 2; see also 102-1,
at 3).
In plaintiff’s second motion, plaintiff identified a specific section of one of
defendants’ briefs that plaintiff seeks to have stricken. (See Doc. 102-1, at 3 (identifying
Section I.B.2 of Docket Numbers 98 and 99 as being at issue)). In support of its motions,
plaintiff argues that Title 42, United States Code, Section 2000e-5(b) bars defendants
from relying on the subject materials because the materials concern things said or done
during conciliation. (Docs. 77-1; 102-1). Plaintiff further asserts that the materials must
be stricken from the record, not merely sealed. (Doc. 109, at 2).
13
A.
Applicable Law
Title 42, United States Code, Section 2000e-5(b) 7 provides, in relevant part, as
follows:
Whenever a charge is filed by or on behalf of a person claiming to
be aggrieved . . . alleging that an employer . . . has engaged in an unlawful
employment practice, the [Equal Employment Opportunity] Commission
shall serve a notice of the charge . . . on such employer . . . and shall make
an investigation thereof. . . . If the Commission determines after such
investigation that there is reasonable cause to believe that the charge is true,
the Commissioner shall endeavor to eliminate any such alleged unlawful
employment practice by informal methods of conference, conciliation, and
persuasion. Nothing said or done during and as a part of such informal
endeavors may be made public by the Commission, its officers or
employees, or used as evidence in a subsequent proceeding without the
written consent of the persons concerned.
The United States Supreme Court has opined on whether descriptions of the conciliation
process should be stricken from the record:
The [d]istrict [c]ourt held that it could not strike from the record
descriptions of the conciliation process because they spoke to whether the
EEOC had made a “sincere and reasonable effort to negotiate.” The
[district] court thus failed to give effect to the law’s non-disclosure
provision. And in so doing, the court undermined the conciliation process
itself, because confidentiality promotes candor in discussions and thereby
enhances the prospects for agreement. As this Court has explained, “[t]he
maximum results from the voluntary approach will be achieved if” the
parties know that statements they made cannot come back to haunt them in
litigation. EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 599, n.16
(1981).
Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1655 (2015) (last alteration in original)
(citation omitted).
7
The Court notes that the motions to strike are being brought pursuant to the aforementioned
statute and are not being brought pursuant to Federal Rule of Civil Procedure 12(f).
14
Other courts have interpreted the Supreme Court’s Mach Mining decision to mean
that absent the written consent of all parties involved, the content of conciliation
communications cannot be used as evidence in a proceeding subsequent to conciliation
discussions. See, e.g., EEOC v. Amstead Rail Co., Inc., 169 F. Supp.3d 877, 884 (S.D.
Ill. 2016). This rationale has been applied to pleadings as well as to evidence. Id.
Similarly, the Fifth Circuit Court of Appeals has held that “a distinction exists between
factual materials related to the merits of the [EEOC’s] charge [against a defendant] and
proposals and counter-proposals of compromise made by the parties during the EEOC’s
efforts to conciliate. . . . Disclosure of the former is allowable, but disclosure of the
latter is not.”
EEOC v. Philip Servs. Corp., 635 F.3d 164, 167 (5th Cir. 2011)
(alterations, citations, and internal quotation marks omitted).
B.
Conciliation Letter
First, plaintiff seeks to have stricken a letter that appears to have been authored as
an attempt to propose terms of conciliation. This letter was included in defendants’
appendix to their reply in support of their motion for summary judgment (Doc. 73-2 8)
and in defendants’ appendix to their supplemental summary judgment brief (Doc. 98-1 9).
Plaintiff seeks to have it stricken from the docket in both of the aforementioned places.
Defendants, in response, argue that the letter is essential to disproving one of plaintiff’s
allegedly undisputed facts.
(Doc. 79, at 2-3).
Although the Court understands
defendants’ predicament in being unable to disprove a fact without using the letter for its
evidentiary value, the statute explicitly provides that nothing said or done during
8
When the Court sealed the letter, the letter was omitted from the appendix and redocketed at
Docket Number 73-3.
9
When the Court sealed the letter, the letter was omitted from the appendix and was redocketed
at Docket Number 98-3.
15
conciliation may be “used as evidence in a subsequent proceeding without the written
consent of the persons concerned.” 42 U.S.C. § 2000e-5(b).
In holding that the letter must be stricken, this Court’s holding is in line with that
of the Fifth Circuit’s in Philip Services. In Philip Services, the Fifth Circuit held that
conciliation proposals and counter proposals between parties may not be disclosed in a
later proceeding. 635 F.3d at 167. The subject letter is just such a proposal or counter
proposal and, therefore, may not be disclosed. Notably, the letter is not being offered to
show that plaintiff did not engage in a meaningful attempt at conciliation, nor is the letter
being used in support of defendants’ argument that plaintiff did not undertake an
investigation prior to filing suit. 10
Further, sealing the letter, as opposed to striking the letter entirely, would not
serve the purpose of giving parties some degree of a guarantee that statements made
during conciliation would not “come back to haunt them in litigation.” Mach Mining,
135 S. Ct. at 1655. See also U.S. EEOC v. Phase 2 Inv. Inc., No. JKB-17-2463, 2018
WL 826526, at *8 (D. Md. Feb. 12, 2018) (“[F]iling [materials regarding conciliation]
under seal would not alleviate the problem created by 42 U.S.C. § 2000e-5(b). Whether
or not the public can view this material is not a dispositive issue. Only when all of the
parties to the conciliation . . . agree can the material be published.” (emphasis in
original)). But see EEOC v. U.S. Steel Corp., 877 F. Supp.2d 278, 289 (W.D. Pa. 2012)
(holding that a court order sealing documents that discussed conciliation proceedings
“cured” any dispute regarding whether the documents were improperly disclosed).
10
The Court notes that the portion of defendants’ brief, discussed infra, that plaintiff seeks to
have stricken addresses whether plaintiff undertook an investigation and attempt to conciliate the
charge prior to bringing suit. Although defendants do, in one location, use the content of the
letter to provide background for defendants’ argument that plaintiff did not investigate the charge
and attempt to conciliate the charge, the Court is satisfied that this information merely provides
context and is not material to whether plaintiff conducted an investigation and attempted to
conciliate the charge. (See Doc. 99, at 11).
16
Indeed, defendants argue only that the subject materials should not be stricken.
Defendants do not argue that sealing the materials would be an appropriate substitute for
striking the materials. Absent authority indicating otherwise, the Court is bound to
disregard the letter as evidence and to strike the letter from the docket.
1.
Waiver of Confidentiality
Defendants argue that plaintiff waived the protection of confidentiality by being
the first party to raise the issue of what transpired during conciliation. (Doc. 79, at 46). Specifically, defendants contend that plaintiff’s statement that defendants “never
offered [L.L.] a job after changing its no-pets policy,” amounted to an assertion that even
during conciliation, defendants never offered L.L. a job. (Id., at 4). Defendants argue
that “[b]y making a statement that supposedly revealed what was said or not said during
the conciliation process, [plaintiff] has waived conciliation confidentiality so that
[defendants] could refute [plaintiff’s] false statement and correct the record.” (Id.).
Defendants reason that if the Court grants plaintiff’s motion to strike, the Court will be
left only with plaintiff’s statement that defendants never offered L.L. a job, and the Court
will not have the benefit of evidence to the contrary, nor will defendants have an
opportunity to refute plaintiff’s statement that defendants never offered L.L. a job.
Defendants cite two cases in support of their argument that plaintiff waived
confidentiality.
Each of the two cases, however, is distinguishable.
In EEOC v.
American Tool & Mold, Inc., the Middle District of Florida granted the EEOC’s motion
to disclose information regarding what was said and done during conciliation. EEOC v.
Am. Tool & Mold, Inc., No. 8:12-cv-2772-T-35EAJ, 2013 WL 12155446 (M.D. Fla.
Nov. 26, 2013). In its motion, the EEOC sought permission to reveal confidential
information in its brief in reply to the defendant’s resistance to the EEOC’s motion for
summary judgment.
In that case, the defendant argued that the EEOC disclosed
confidential conciliation information in the EEOC’s motion for summary judgment, and
17
that the EEOC “forced” the defendant to reveal confidential information in the
defendant’s resistance in order to refute the EEOC’s disclosure. Id., at *3. The district
court, however, was unpersuaded and held that the defendant “could have simply moved
to strike those portions of the motion it found objectionable.” Id. The defendant declined
to do so and, instead, revealed additional conciliation information beyond the information
that the EEOC had already disclosed. By doing so, the defendant put the court in a
position where “the [c]ourt [could not] resolve the conciliation defense without a full
recitation of the facts related to it.” Id. The district court indicated that the necessity of
the court discussing the facts of what occurred during conciliation influenced the court’s
decision to permit the EEOC to further disclose conciliation information in its reply brief.
See id.
Here, defendants argue that plaintiff improperly disclosed facts regarding
conciliation and that defendants were forced to respond with additional facts regarding
what occurred during conciliation. The Court understands defendants’ argument that
plaintiff disclosed facts concerning conciliation by stating that defendants did not offer
L.L. a job, even during conciliation. Although this argument could have merit, the Court
finds that the more proper course would have been for defendants to move to strike the
contested material in plaintiff’s brief rather than to disclose additional confidential
information. As in American Tool & Mold, defendants did not do so. American Tool &
Mold is distinguishable, however, when one considers whether this Court must engage
in a discussion of the facts surrounding conciliation in resolving defendants’ defense that
plaintiff failed to engage in conciliation discussions.
The Court need not engage in such a discussion for two reasons. First, the Court
is able to resolve the cross motions for summary judgment on bases other than defendants’
conciliation defense and on bases other than plaintiff’s assertion that defendants never
offered L.L. a job. Thus, a discussion of the facts surrounding what occurred during
18
conciliation is unnecessary and, likely, improper.
Likewise, the issue of whether
defendants offered L.L. a job becomes immaterial based on the Court’s rationale in
deciding the motions for summary judgment. Second, based on the denial of defendants’
motion to amend their answer, defendants are bound by the admission that all conditions
precedent to the instant suit, including the statutory requirement that plaintiff attempt to
conciliate the charges, were satisfied prior to plaintiff filing the complaint in the instant
case. The Court therefore finds that American Tool & Mold is distinguishable and is not
persuasive here.
Defendants also cite EEOC v. Rockwell International Corp., 922 F. Supp. 118
(N.D. Ill. 1996), in support of their position that plaintiff waived confidentiality of the
subject materials. In Rockwell, however, the district court was specifically called upon
to determine whether the defendant was given sufficient pre-litigation notice of the
conduct complained of such that the EEOC could properly bring suit. 922 F. Supp. at
120. The court found that it could consider the scope of the EEOC’s conciliation efforts
only for the narrow purpose of determining whether the EEOC had provided sufficient
notice to the defendant prior to bringing suit. Id.
The situation in the instant case is distinguishable because, as discussed supra,
defendants are bound by the admission that all conditions precedent to bringing the instant
suit were satisfied prior to plaintiff filing its complaint. As a result, although Rockwell
provides support for the notion that raising a conciliation issue could amount to a waiver
of confidentiality, the Rockwell court did not consider whether such a waiver could occur
where it has already been established that all conditions precedent have been satisfied.
Moreover, Rockwell is an out of circuit case from 1996—long before the Supreme Court’s
admonition against revealing confidential information in the context of Section 2000e5(b)—and is not binding on this Court. Further, as the Court has already noted, the
materials sought to be stricken are not material to the Court’s decision on the cross
19
motions for summary judgment and, therefore, defendants are not prejudiced by the
materials being stricken.
2.
Federal Rule of Evidence 408
Finally, defendants argue that the letter is admissible under Federal Rule of
Evidence 408. (Doc. 79, at 6-7). The Court need not reach the merits of this argument.
The Court has determined that pursuant to a federal statute, the letter may not be used as
evidence. Even if the letter could be admitted into evidence under Rule 408, the statutory
command prohibiting disclosure of the letter would prevail over a procedural rule to the
contrary. See FED. R. EVID. 1101(e) (“A federal statute or a rule prescribed by the
Supreme Court may provide for admitting or excluding evidence independently from
these rules.”). As such, plaintiff’s motions to strike (Docs. 77, 102) are granted to the
extent the motions seek to strike the letter from the docket in the two places in which the
letter appears. The Clerk of Court is directed to strike from the docket the documents
currently appearing at Docket Number 73-3 and Docket Number 98-3.
C.
Defendants’ Supplemental Summary Judgment Brief
Next, plaintiff seeks to have the Court strike a portion of defendants’ supplemental
summary judgment brief because, plaintiff asserts, that portion of the brief contains
improper references to things said and done during conciliation. 11 (See Doc. 102-1).
The section of the brief at issue addresses whether plaintiff undertook an investigation
prior to attempting conciliation. Defendants argue that plaintiff did not investigate the
alleged misconduct at all and that absent an investigation, the conciliation process could
11
The Court notes that there is a discrepancy as to which pages of defendants’ brief plaintiff is
seeking to have stricken. The pages identified by plaintiff do not match the page numbers
containing Section I.B.2 of defendants’ brief, which is the section sought to be stricken. (Doc.
102, at 2). The Court will construe plaintiff’s motion as seeking to strike the entirety of Section
I.B.2 and not seeking to strike material appearing in any other section of defendants’ brief.
20
not have proceeded in a meaningful fashion. Thus, defendants reason, the conciliation
process was meaningless.
The Supreme Court addressed this issue in Mach Mining:
The statute demands . . . that the EEOC communicate in some way (through
“conference, conciliation, and persuasion”) about an “alleged unlawful
employment practice” in an “endeavor” to achieve an employer’s voluntary
compliance. [42 U.S.C.] § 2000e-5(b). That means the EEOC must inform
the employer about the specific allegation, as the Commission typically does
in a letter announcing its determination of “reasonable cause.” Id. Such
notice properly describes both what the employer has done and which
employees (or what class of employees) have suffered as a result. And the
EEOC must try to engage the employer in some form of discussion (whether
written or oral), so as to give the employer an opportunity to remedy the
allegedly discriminatory practice. Judicial review of those requirements
(and nothing else) ensures that the Commission complies with the statute.
At the same time, that relatively barebones review allows the EEOC to
exercise all the expansive discretion Title VII gives it to decide how to
conduct conciliation efforts and when to end them. And such review can
occur consistent with the statute’s non-disclosure provision, because a court
looks only to whether the EEOC attempted to confer about a charge, and
not to what happened (i.e., statements made or positions taken) during those
discussions.
135 S. Ct. at 1655-56.
With one exception, the Court finds that the information contained in Section I.B.2
of defendants’ supplemental summary judgment brief provides the Court only with
general information regarding whether plaintiff attempted to conciliate, but does not
disclose the parties’ statements or the positions taken during conciliation discussions.12
Indeed, the Court’s reading of defendant’s brief is buttressed when one considers the
12
The Court notes that the Supreme Court used the abbreviation “i.e.” in its Mach Mining
decision, as opposed to “e.g.” 135 S. Ct. at 1656. Use of the former indicates that the listing
of “statements made and positions taken” is intended to be an exhaustive list, whereas use of
“e.g.” would indicate the use of a non-exhaustive list. Id.
21
portions of defendants’ supplemental summary judgment appendix (Doc. 98-1) that
plaintiff does not seek to have stricken.
The bulk of the section of defendants’ brief that plaintiff seeks to have stricken
refers to and quotes portions of two separate letters authored by a member of L.L.’s
medical team. Those letters appear, in full, in the aforementioned appendix, and plaintiff
does not seek to have the letters stricken from the record. The lack of such a motion to
strike indicates that plaintiff does not contend that the letters are statutorily protected
from disclosure.
The timing of when plaintiff provided one of the two letters to defendants is also
set forth in the section plaintiff seeks to have stricken. (See Doc. 99, at 12). This
information, however, is also provided elsewhere in the same brief, and plaintiff has not
moved to have the information stricken in that location. (Compare id. with Doc. 99, at
3). Just as plaintiff’s choice not to move to strike certain portions of the appendix
indicates that plaintiff does not believe those portions are statutorily protected as
confidential, plaintiff’s choice not to seek to have the information regarding timing
stricken indicates that plaintiff does not believe the information is statutorily protected as
confidential.
The section at issue also contains references to L.L.’s deposition. (Doc. 99, at
12). As before, plaintiff has not moved to have any portions of L.L.’s deposition
stricken. This indicates that plaintiff does not think L.L.’s deposition is statutorily
protected as confidential. Aside from one portion of defendants’ brief that the Court will
discuss below, the remainder of the relevant section of defendants’ brief provides legal
argument and does not contain any information that is specific to the conciliation process
in the instant case.
In considering each of the aforementioned pieces of information contained in the
section of defendants’ brief that is at issue, the Court finds that the information is largely
22
non-specific and provides only enough information as is necessary to inform the Court
of whether plaintiff attempted to conciliate the charges brought.
Specifically, the
information speaks to whether an investigation occurred prior to conciliation, but the
information does not explain the parties’ stances or positions regarding any matters—
procedural or substantive—surrounding plaintiff’s investigation and subsequent alleged
attempts at conciliation. As such, the Court finds that Mach Mining allows the Court to
consider such general information as is at issue in the instant case for the narrow purpose
of assessing whether plaintiff complied with all statutory conditions precedent and that
the information, therefore, need not be stricken.
As previously mentioned, the Court finds that there is one exception to the Court’s
finding that the information contained in the contested section of defendants’ brief is of
such a general nature that it has not been impermissibly disclosed. The first paragraph
of Section I.B.2 of defendants’ brief contains two sentences that refer to the letter in
defendants’ appendix that the Court has stricken.
Each of those two sentences is
immediately followed by a citation sentence that cites to the pages of defendants’ appendix
that contained the contested letter, before that letter was removed from the docket.
For the same reasons that the Court found it appropriate to strike the letter, the
Court finds it appropriate to strike the aforementioned references to the letter in
defendants’ brief (Docs. 98, 99). The references in the brief disclose, explicitly, the
parties’ positions during conciliation. The Supreme Court has specifically held that such
disclosures are prohibited. Mach Mining, 135 S. Ct. at 1656. The Court therefore finds
that it is proper to strike the two aforementioned sentences and the accompanying
citations. 13 As to defendants’ brief, plaintiff’s motion to strike (Doc. 102) is granted in
part and denied in part.
13
The Court notes that the legal sufficiency of defendants’ arguments is not affected by striking
this narrow portion of defendants’ brief.
23
Defendants are instructed to redact the two aforementioned sentences from their
brief by “blacking out” the subject material. Defendants are then to provide the new,
redacted page to the Court for in camera review 14 and, upon the Court’s verification that
the correct information has been redacted, the Court will provide the redacted page to
the Clerk of Court so that the page may be incorporated into defendants’ brief (Docs. 98,
99) in place of the original page. When the Clerk of Court reincorporates the redacted
page into defendants’ brief, the Clerk of Court is also directed to reincorporate the pages
currently docketed at pages 1 and 3 of Docket Number 98-2 into defendants’ brief, where
those pages originally appeared. Page 2 of Docket Number 98-2 is to be stricken from
the docket.
The brief that will appear at Docket Number 98 after the pages are
reincorporated is not to be sealed.
IV.
A.
MOTIONS FOR SUMMARY JUDGMENT
Summary Judgment Standard
Summary judgment is appropriate where “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” FED. R. CIV. P. 56(a). When asserting that a fact is undisputed or is genuinely
disputed, a party must support the assertion by “citing to particular parts of materials in
the record, including depositions, documents, electronically stored information, affidavits
or declarations, stipulations . . ., admissions, interrogatory answers, or other materials.”
FED. R. CIV. P. 56(c)(1)(A); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Alternatively, a party may “show[ ] that the materials cited do not establish the absence
or presence of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.” FED. R. CIV. P. 56(c)(1)(B). More specifically, “[a] party
14
Defendants are instructed to provide the redacted page to the Court via email, and defendants
are instructed to copy all counsel of record on the email.
24
may object that the material cited to support or dispute a fact cannot be presented in a
form that would be admissible in evidence.” FED. R. CIV. P. 56(c)(2).
A fact is “material” if it “might affect the outcome of the suit under the governing
law . . ..” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (citation omitted).
“An issue of material fact is genuine if it has a real basis in the record,” Hartnagel v.
Norman, 953 F.2d 394, 395 (8th Cir. 1992) (citation omitted), or “when a reasonable
jury could return a verdict for the nonmoving party on the question,” Wood v.
DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005) (internal quotation marks and
citation omitted).
Evidence that presents only “some metaphysical doubt as to the
material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986), or evidence that is “merely colorable” or “not significantly probative,” Anderson,
477 U.S. at 249-50, does not make an issue of fact genuine. In sum, a genuine issue of
material fact requires “sufficient evidence supporting the claimed factual dispute” that it
“require[s] a jury or judge to resolve the parties’ differing versions of the truth at trial.”
Id. at 249 (citation and internal quotation marks omitted).
The party moving for summary judgment bears “the initial responsibility of
informing the district court of the basis for its motion and identifying those portions of
the record which show a lack of a genuine issue.” Hartnagel, 953 F.2d at 395 (citation
omitted). Once the moving party has met this burden, the nonmoving party must go
beyond the pleadings and by depositions, affidavits, or other evidence designate specific
facts showing that there is a genuine issue for trial. See Mosley v. City of Northwoods,
Mo., 415 F.3d 908, 910 (8th Cir. 2005).
In determining whether a genuine issue of material fact exists, courts must view
the evidence in the light most favorable to the nonmoving party, giving that party the
benefit of all reasonable inferences that can be drawn from the facts. Tolan v. Cotton,
134 S. Ct. 1861, 1863 (2014); Matsushita, 475 U.S. at 587-88 (citation omitted); see
25
also Reed v. City of St. Charles, Mo., 561 F.3d 788, 790 (8th Cir. 2009) (stating that in
ruling on a motion for summary judgment, a court must view the facts “in a light most
favorable to the non-moving party—as long as those facts are not so ‘blatantly
contradicted by the record . . . that no reasonable jury could believe’ them” (alteration
in original) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)). A court does “not
weigh the evidence or attempt to determine the credibility of the witnesses.” Kammueller
v. Loomis, Fargo & Co., 383 F.3d 779, 784 (8th Cir. 2004) (citation omitted). Rather,
a “court’s function is to determine whether a dispute about a material fact is genuine
. . ..” Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1376-77 (8th Cir. 1996).
B.
Substantive Law
Plaintiff brought three claims against each defendant. (Docs. 19; 96, at 2; 99, at
2). Plaintiff asserts that each defendant violated: 1) Section 102(a) of Title I of the ADA,
as codified at Title 42, United States Code, Section 12112(a); 2) Section 503(a) of Title
V of the ADA, as codified at Title 42, United States Code, Section 12203(a); and 3)
Section 503(b) of Title V of the ADA, as codified at Title 42, United States Code, Section
12203(b). (Doc. 19, at ¶¶ 14-18; see also Doc. 96, at 2). Section 102(a) prohibits
discrimination on the basis of disability, Section 503(a) prohibits retaliation against an
individual who, inter alia, asserts his or her rights under the ADA, and Section 503(b)
prohibits interference with an individual’s exercise of his or her rights under the ADA.
Plaintiff has not sufficiently alleged claims for failure to accommodate under the ADA.
(But see Doc. 96, at 2 (asserting plaintiff brought claims for failure to accommodate)).
The ADA prohibits covered entities from “discriminat[ing] against a qualified
individual on the basis of disability in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job training, and other
terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). A “qualified
individual” is one “who, with or without reasonable accommodation, can perform the
26
essential functions of the employment position that such individual holds or desires.” 42
U.S.C. § 12111(8).
Discrimination prohibited by the ADA includes “not making
reasonable accommodations to the known physical or mental limitations of an otherwise
qualified individual with a disability,” and “denying employment opportunities to a job
applicant or employee who is an otherwise qualified individual with a disability, if such
denial is based on the need . . . to make reasonable accommodation to the physical or
mental impairments of the employee or applicant.” 42 U.S.C. § 12112(b)(5).
Stated simply, the elements of a claim under Section 102 are: 1) a qualifying
disability; 2) qualification to perform the essential functions of the position with or
without a reasonable accommodation; and 3) an adverse employment action due to the
disability.
Kelleher v. Wal-Mart Stores, Inc., 817 F.3d 624, 631 (8th Cir. 2016)
(citations omitted). The parties agree that for plaintiff to establish a claim of retaliation
under Section 503(a), plaintiff must show that L.L. engaged in a protected activity, that
L.L. suffered an adverse employment action, and that there is a causal connection
between the two. Heisler v. Metro. Council, 339 F.3d 622, 632 (8th Cir. 2003). (See
also Docs. 54-1, at 13; 67, at 18). A plaintiff alleging an interference claim under Section
503(b) must show that 1) the charging party engaged in activity statutorily protected by
the ADA; 2) the charging party engaged in, or aided or encouraged others in, the exercise
or enjoyment of ADA protected rights; 3) the defendants interfered on account of the
charging party’s protected activity; and 4) the defendants were motivated by an intent to
discriminate. See Frakes v. Peoria Sch. Dist. No. 150, 872 F.3d 545, 550-51 (7th Cir.
2017) (citations omitted).
C.
Discussion
Plaintiff’s motion for partial summary judgment “seeks judgment on liability
against CRST Expedited only.
At trial, [plaintiff] will prove liability of CRST
International and will seek relief against both Defendants.”
27
(Doc. 84, at 1 n.1).
Plaintiff’s motion concerns only plaintiff’s “failure to hire and failure to accommodate
claims.” (Doc. 84, at 1). Plaintiff does not seek summary judgment on any element of
the retaliation claim, 15 and plaintiff makes no mention of the interference claim. (Id.).
The Court will therefore construe plaintiff’s motion as seeking summary judgment on
CRST Expedited’s liability as to the discrimination claim. Defendants seek summary
judgment as to 1) plaintiff’s ADA claims of disability discrimination, retaliation, and
interference; 2) plaintiff’s claims for compensatory and punitive damages as to the
retaliation claims; and 3) request that the Court strike plaintiff’s jury demand on the
retaliation and interference claims. (Doc. 54, at 2).
1.
Discrimination
Defendants contend that plaintiff is not entitled to summary judgment on its claims
for discrimination because plaintiff cannot show that L.L. was qualified to perform the
essential functions of the job of an over-the-road truck driver.
(Doc. 54-1, at 4).
Consistent with plaintiff’s motion for summary judgment as to CRST Expedited’s liability
on the discrimination claim, plaintiff argues that L.L. was, indisputably, qualified to
perform the job because L.L. possessed a commercial driver’s license and “successfully
found employment as a long-haul truck driver with another company.” (Doc. 84-1, at
6-8). Specifically, L.L. was denied employment with defendants in May 2015 (Id., at
2), and began driving for a different company in November 2015 (Id., at 8).
To determine whether an individual is “qualified” within the meaning of the ADA,
the Court must conduct a two-part inquiry. Walz v. Ameriprise Fin., Inc., 779 F.3d 842,
845 (8th Cir. 2015). First, the Court must ask whether the charging party “possesses the
requisite skills, education, certification or experience necessary for the job.”
15
Id.
To the extent plaintiff’s motion for summary judgment on the “failure to hire” claims amounts
to a motion for summary judgment on the retaliation claims, such motion is denied. As is
explained infra, a genuine dispute of material fact exists on the retaliation claim such that
summary judgment is inappropriate.
28
(citations and internal quotation marks omitted). Second, the Court must determine
whether the charging party “can, despite [his] impairments, perform the essential
functions of the job either with or without reasonable accommodation.” Id. (citations
and internal quotation marks omitted).
Defendants argue that L.L. was not qualified to drive a commercial vehicle
because L.L. had been involuntarily civilly committed two months prior to the date on
which L.L. underwent a medical examination to receive clearance to drive commercially.
(Doc. 54-1, at 5-6). Further, defendants assert that L.L. failed to disclose the full extent
of his mental health history, including having a history of impulsive and destructive
behaviors, anxiety, and blackouts. (Id.). Defendants have brought evidence showing
that had the medical examiner been aware of any of this information, the medical
examiner would not have found L.L. medically fit to drive commercially. (Doc. 54-3,
at 17-20).
The Court finds that a genuine dispute of material fact exists as to whether L.L.
could, despite his impairments, perform the essential functions of the job at the time L.L.
applied for a job with defendants. Although L.L.’s ability to drive for a different trucking
company beginning in November 2015 is potentially probative on L.L.’s ability to
perform the duties of a commercial truck driver, the Court cannot find that L.L.’s
employment beginning in November 2015, alone, is sufficient to show that L.L. could
have driven for defendants at the time L.L. applied for a job with defendants.
L.L. was involuntarily civilly committed on March 10, 2015 (Doc. 54-3, at 2223), and applied for a job with defendants approximately two months later (Doc. 84-2,
at 2). Even assuming L.L. was mentally fit to drive a commercial vehicle in November
2015, this fact alone does not guarantee that L.L. was also fit to drive a commercial
vehicle six months prior. Notably, a mere two months had elapsed between L.L.’s
involuntary commitment and L.L.’s application to drive with defendants. Given that
29
L.L. was denied a job with defendants a mere two months after his involuntary
commitment and L.L. did not procure a commercial driving job until six months after
applying with defendants, the Court cannot find that L.L.’s procurement of the
subsequent job is sufficient to show that L.L. was medically fit to drive at the time L.L.
applied for a job with defendants. Further, L.L.’s subsequent ability to procure a
commercial driving job indicates that L.L. could have been medically fit to drive
commercially when defendants denied L.L.’s application for employment. Whether L.L.
was medically fit to do so when defendants denied L.L.’s application, however, is a
question of fact that must be resolved by the factfinder at trial. The cross motions for
summary judgment as to plaintiff’s claims of discrimination are, therefore, denied.
Further, defendants have not provided appropriate legal support for the contention
that L.L. was not “qualified” to drive commercially. Although defendants have brought
evidence that L.L. would not have passed the medical exam had the medical examiner
been aware of L.L.’s full psychiatric history, defendants have not cited to legal authority
showing that any alleged untruthful statements or omissions made during the medical
exam would have rendered L.L.’s state commercial driver’s license invalid. Defendants
cite to guidance promulgated by the Federal Motor Carrier Safety Administration, which
provides that omission or falsification of information during the medical examination may
invalidate the examination, but defendants have not cited authority from the relevant state
showing that such invalidation did occur and that such invalidation simultaneously served
to invalidate L.L.’s commercial driver’s license. (Doc. 54-1, at 8).
2.
Retaliation and Interference
To establish a claim of retaliation, plaintiff must show a causal connection between
plaintiff allegedly engaging in a protected activity and defendants not hiring plaintiff.
Although defendants assert that the reason L.L. was not hired was because of defendants’
“no pets” policy that was in place at the time (Doc. 54-1, at 13), a reasonable factfinder
30
could find that L.L. was not hired because L.L. raised his right to an accommodation
under the ADA. Indeed, there is evidence both in favor of plaintiff and in favor of
defendants on the issue of why L.L. was not hired. Amongst other evidence, plaintiff
turns to the temporal proximity between L.L.’s request for an accommodation and
defendants’ refusal to hire L.L. (Doc. 67, at 19). Although not necessarily dispositive,
a reasonable factfinder could find that L.L. requesting an accommodation and
“simultaneously” being denied a job could indicate that L.L. was not hired specifically
because he requested an accommodation. (Id.). As such, summary judgment on the
retaliation claim is inappropriate. Defendants’ motion for summary judgment as to the
retaliation claim is denied.
Defendants argue that they are entitled to summary judgment on the interference
claims because, defendants assert, plaintiff will be unable to show that plaintiff
“interfered” with L.L.’s rights. (Doc. 54-1, at 15). Defendants do not address each way
in which plaintiff could show “interference,” and defendants, therefore, have not shown
that they are entitled to judgment as a matter of law. (Id. (providing one example of a
way in which defendants contend plaintiff will be unable to prove interference)). Even
on the undisputed facts, however, the Court finds that summary judgment in favor of
defendants would be improper as to the interference claim. Defendants argue, again, that
it refused to hire L.L. because of the “no pets” policy that was in place at the time. (Id.).
Assuming, in arguendo, that this contention is true, a reasonable factfinder could find
that defendants “interfered” with L.L.’s rights.
In addressing a similar issue, the Ninth Circuit Court of Appeals held that “the
plain language of § 503(b) clearly prohibits a supervisor from threatening an individual
with transfer, demotion, or forced retirement unless the individual forgoes a statutorily
protected accommodation.” Brown v. City of Tucson, 336 F.3d 1181, 1192-93 (9th Cir.
2003). If plaintiff is able to prove that L.L. was entitled to the accommodation sought
31
and that defendants threatened not to hire L.L. unless he abandoned his claim to the
accommodation, plaintiff will be able to satisfy the “interference” element of the
interference claims. The Court therefore rejects defendants’ argument that plaintiff will
be unable to prove the “interference” element of the interference claims. Defendants
have not challenged any other element of the interference claims and, as such, defendants’
motion for summary judgment as to the interference claims is denied.
3.
Damages and Jury Demand
Defendants argue that plaintiff is not entitled to legal relief 16 on plaintiff’s
retaliation and interference claims and request that the Court limit plaintiff’s remedy to
equitable relief. (Doc. 54-1, at 15-16). Based on defendants’ argument that plaintiff is
entitled only to equitable relief, defendants request that the Court strike plaintiff’s jury
demand as to the retaliation and interference claims. (Id., at 17). Plaintiff does not
provide authority or argument in opposition to defendants’ motion regarding damages
and the jury demand. (See Doc. 67, at 22). Instead, plaintiff asserts that it would be
premature for the Court to decide the issue of damages at the present time. (Id.). It is
not clear at what point plaintiff would consider the issue to no longer be “premature.”
(See id.).
Defendants argue that punitive and compensatory damages for plaintiff’s
interference and retaliation claims 17 are not authorized under Section 503. (Doc. 54-1,
16
Defendants cite Title 42, United States Code, Section 12203 for the proposition that
compensatory damages are not recoverable for retaliation and interference claims. (Doc. 54-1,
at 15-16). Defendants do not explicitly make the same argument as to punitive damages. When
read in context, however, it would appear that defendants intended the same argument to apply
to both compensatory and punitive damages. For purposes of the instant motion, the Court will
construe defendants’ argument as being applied to both compensatory and punitive damages.
17
Defendants do not argue that punitive and compensatory damages are not recoverable as to
plaintiff’s discrimination claims. The Court notes that Title 42, United States Code, Section
32
at 16). Section 503 provides, in relevant part, that the remedies set forth in Title 42,
United States Code, Section 12117 apply to claims brought under Section 503. That
Section, in turn, refers, in relevant part, to the remedies provided in Title 42, United
States Code, Section 2000e-5. Although Section 2000e-5(g) addresses equitable relief,
Section 2000e-5 does not address whether compensatory or punitive damages may be
awarded. The Civil Rights Act of 1991, as codified at Title 42, United States Code,
Section 1981a, however, expands the remedies available under Section 2000e-5 in certain
circumstances and, in those circumstances, permits an award of compensatory and
punitive damages. Section 1981a(a)(1) provides as follows:
In an action brought by a complaining party under Section 706 . . . of the
Civil Rights Act of 1964 (42 U.S.C. 2000e-5) against a respondent who
engaged in unlawful intentional discrimination . . . prohibited under
Section 703, 704, or 717 of the [Americans with Disabilities Act] (42
U.S.C. 2000e-2, 2000e-3, 2000e-16), . . . the complaining party may
recover compensatory and punitive damages . . ..
Plaintiff has not brought a claim under Sections 702, 704, or 717 of the ADA. As
a result, the terms of Section 1981a do not explicitly provide for compensatory or punitive
damages for plaintiff’s interference and retaliation claims. The Court therefore must
determine whether such damages are recoverable in spite of the statute’s silence on such
damages. The Court finds a decision from the Seventh Circuit Court of Appeals to be
instructive:
We . . . conclude that the 1991 Civil Rights Act does not expand the
remedies available to a party bringing an ADA retaliation claim against an
employer and therefore compensatory and punitive damages are not
available. 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)
1981a(b) provides for punitive and compensatory damages for discrimination claims that have
been brought under Section 102 of the ADA.
33
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. Instead, the remedies available for ADA
retaliation claims against an employer are limited to the remedies set forth
in § 2000e-5(g)(1). See Nat’l R.R. Passenger Corp. v. Nat’l Ass’n of R.R.
Passengers, 414 U.S. 453, 458 (1974) (“A frequently stated principle of
statutory construction is that when legislation expressly provides a
particular remedy or remedies, courts should not expand the coverage of
the statute to subsume other remedies.”).
Kramer v. Banc of Am. Sec., LLC, 355 F.3d 961, 965 (7th Cir. 2004).
The Eighth Circuit Court of Appeals has not opined on whether retaliation or
interference claims may provide the basis for an award of compensatory or punitive
damages. Most courts to consider the issue, however, including two district courts within
the Eighth Circuit, have followed the Seventh Circuit’s rationale in Kramer. See, e.g.,
Alvarado v. Cajun Operating Co., 588 F.3d 1261, 1264-70 (9th Cir. 2009); Harms v.
City of North Platte, No. 8:17CV301, 2017 WL 6501848, at *1-2 (D. Neb. Dec. 19,
2017); Casteel v. City of Crete, No. 4:16CV3166, 2017 WL 3635184, at *1-2 (D. Neb.
Aug. 23, 2017); Wilkie v. Luzerne Cnty., No. 3:14cv462, 2014 WL 4977418, at *2-4
(M.D. Pa. Oct. 6, 2014); EEOC v. Faurecia Exhaust Sys., Inc., 601 F. Supp.2d 971,
973-76 (N.D. Ohio 2008); Brown v. City of Lee’s Summit, No. 98-0438-CV-W-2, 1999
WL 827768, at *2-6 (W.D. Mo. June 1, 1999). But see Rumler v. Dep’t of Corr., 546
F. Supp.2d 1334, 1339-43 (M.D. Fla. 2008); Edwards v. Brookhaven Science Assoc.,
LLC, 390 F. Supp.2d 225, 233-36 (E.D.N.Y. 2005). The Court agrees with the Seventh
Circuit’s analysis in Kramer and, therefore, finds that plaintiff is not entitled to
compensatory or punitive damages on the retaliation claims.
34
Further, the Seventh Circuit’s analysis in Kramer is equally applicable to plaintiff’s
interference claims.
The Seventh Circuit’s finding that compensatory and punitive
damages are not recoverable on ADA retaliation claims is based on Section 503’s absence
from Section 1981a(a)(1). Plaintiff’s interference claims stem from Section 503(b).
Section 503 is wholly absent from Section 1981a(a)(1); as such, if compensatory and
punitive damages must be barred for actions brought under Section 503(a), compensatory
and punitive damages likewise must be barred for actions brought under Section 503(b).
The Court therefore concludes that plaintiff is not entitled to compensatory or punitive
damages on either plaintiff’s retaliation claims or plaintiff’s interference claims.
Defendants’ motion for summary judgment to bar compensatory and punitive damages
on plaintiff’s retaliation and interference claims is granted.
The Court notes that when confronted with the issue of whether an award of
compensatory and punitive damages was proper on an ADA retaliation claim, the Eighth
Circuit upheld an award of compensatory and punitive damages. Foster v. Time Warner
Entm’t Co., L.P., 250 F.3d 1189 (8th Cir. 2001). In Foster, however, the Eighth Circuit
only addressed 1) whether plaintiff proved all elements of her case, 2) whether the
damages award was excessive, and 3) whether the district court erred in its evidentiary
rulings and jury instructions. Id. at 1194. The Eighth Circuit was not called upon to
address whether there was a proper basis for awarding compensatory and punitive
damages for the retaliation claim, and the Eighth Circuit did not address the issue. This
Court is therefore satisfied that, although at first blush it would appear that the Eighth
Circuit has upheld an award of compensatory and punitive damages for an ADA
retaliation claim, the Eighth Circuit considered only the issues that were raised on appeal
and did not consider the issue that is now before this Court.
Likewise, in Salitros v. Chrysler Corp., 306 F.3d 562, 574-76 (8th Cir. 2002),
the Eighth Circuit upheld an award of punitive damages on an ADA retaliation claim, but
35
the Eighth Circuit only addressed whether the punitive damages award could stand in the
absence of a compensatory damages award. The Eighth Circuit did not address whether
such damages were statutorily authorized.
See also Kramer, 355 F.3d at 965
(distinguishing Salitros). As such, in Salitros, the Eighth Circuit did not address the
issue that this Court is now confronted with. The Court is satisfied that the Eighth Circuit
cases that seem to have addressed the issue of compensatory and punitive damages did
not reach the issue that is now before the Court and, therefore, are not relevant to the
current inquiry.
In the absence of a right to recover compensatory and punitive damages, plaintiff
is entitled only to equitable relief on the retaliation and interference claims. See 42
U.S.C. § 2000e-5(g)(1). See also Alvarado, 588 F.3d at 1270 (“Because we conclude
that ADA retaliation claims are redressable only by equitable relief, no jury trial is
available.”). Plaintiff has asserted no other basis for its right to a jury trial on the
retaliation and interference claims. The Court therefore finds that plaintiff is not entitled
to a trial by jury on plaintiff’s retaliation and interference claims. See Granfinanciera,
S.A. v. Nordberg, 492 U.S. 33, 43-44 (1989) (holding that the Seventh Amendment does
not guarantee the right to a trial by jury for equitable claims). Defendants’ motion to
strike plaintiff’s jury demand as to the retaliation and interference claims is granted.
36
V.
CONCLUSION
For the aforementioned reasons, the Court’s rulings are as follows: 1) defendants’
motion for summary judgment (Doc. 54) is granted in part and denied in part; 2)
plaintiff’s motion for partial summary judgment (Doc. 84) is denied; 3) plaintiff’s first
motion to strike (Doc. 77) is granted; 4) plaintiff’s second motion to strike (Doc. 102)
is granted in part and denied in part; and 5) defendants’ motion to amend their answer
(Doc. 93) is denied.
IT IS SO ORDERED this 7th day of December, 2018.
__________________________________
C.J. Williams
United States District Judge
Northern District of Iowa
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