Casteel v. City of Crete

Filing 20

MEMORANDUM AND ORDER that Defendant's motion to strike is granted in part and denied in part as follows: 1. Defendant's motion to strike Plaintiff's claim for compensatory damages for any alleged retaliation under the ADA (42 U.S. C. 12203) is granted. 2. Defendant's unopposed motion to strike Plaintiff's request for punitive damages is granted. 3. Defendant's motion to strike Plaintiff's jury demand is granted as to Plaintiff's claims under the NFEPA and Plaintiff's claim for retaliation under the ADA. The motion is denied with respect to Plaintiff's claims for discrimination under the ADA and for retaliation under Title VII. Ordered by Magistrate Judge Cheryl R. Zwart. (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JAY F. CASTEEL, an individual;
Plaintiff,

4:16CV3166

vs.
MEMORANDUM AND ORDER
CITY OF CRETE,
Defendant.
This matter is before the court on Defendant’s motion to strike Plaintiff’s
demand for compensatory damages as to his claim for retaliation under the
Americans with Disabilities Act (“ADA”), and his request for a jury trial.1 (Filing
No. 11). For the reasons set forth below the motion is granted in part and denied
in part.
BACKGROUND
Plaintiff Jay Casteel (“Casteel”) alleges the City of Crete discriminated
against him when it fired Casteel from his job as a journeyman lineman.
Specifically, Plaintiff’s complaint alleges:
Counts I and II – Disability discrimination under the ADA (42 U.S.C.
§§ 12101 - 12213) and the Nebraska Fair Employment Practices Act
(“NFEPA”)(Neb. Rev. Stat. § 48-1101 - 1126);
Counts III through VI – Retaliation under the ADA, 42 U.S.C §
2000e-3(a) (Title VII of the Civil Rights Act of 1964 (“Title VII”)), and
the NFEPA;

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Defendant also moved to strike Plaintiff’s request for punitive damages
on his federal claims. Plaintiff has since conceded that issue. (Filing No. 15 at
CM/ECF pp. 5-6). As such, Defendant’s motion to strike the punitive damage
demand will be granted but not discussed in this order.

(Filing No. 1 at CM/ECF p. 6). Plaintiff seeks back pay and lost benefits,
front pay and benefits, compensatory damages, punitive damages,
attorney’s fees, and pre- and post-judgment interest.

(Filing No. 1 at

CM/ECF pp. 5-6). Plaintiff’s complaint demands a jury trial.
Defendant has moved to strike Plaintiff’s demand for compensatory
damages as to his claim for retaliation under the ADA. Defendant has also
moved to strike the jury demand as to all claims, asserting the City of Crete
is a political subdivision and thus not subject to a jury trial pursuant to the
Nebraska Political Subdivision Tort Claims Act.

ANALYIS

1.

Motion to Strike Demand for Compensatory Damages: ADA
Retaliation Claim.

Defendant

argues

Plaintiff

is

statutorily

barred

from

recovering

compensatory damages on his claim of retaliation under the ADA. Plaintiff’s
claim for retaliation arises under 42 U.S.C. § 12203 which expressly prohibits
retaliation against an individual who “made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing” based on
an alleged ADA violation. Section 12203 adopts the remedies available under 42
U.S.C. § 12117, which in turn adopts the remedies under 42 U.S.C. § 2000e-5.
Alvarado v. Cajun Operating Co., 588 F.3d 1261, 1265 (9th Cir. 2009). Thus,
section 2000e-5 contains the enforcement provisions applicable to the ADA. Id.
Brown v. City of Lee’s Summit, no. 98cv0438, 1999 WL 827768, *2-*4 W.D. Mo.
June 1, 1999). Section 2000e-5(g)(1) and (2) provide for a potential award of
equitable remedies including reinstatement and back-pay.

These statutory

provisions do not, however, provide for compensatory damages. 42 U.S.C. §
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2000e-5; see also Alvarado, 588 F.3d at 1265; Brown, 1999 WL 827768, at *2*4. While 42 U.S.C. § 1981a, as part of the Civil Rights Act of 1991, expanded
the available remedies in employment discrimination cases, § 1981a(b) permits
compensatory damages in suits alleging violations of the ADA, including actions
based intentional discrimination, but it does not expressly allow recovery for
compensatory damages for claims of retaliation under § 12203 of the ADA. See
Kramer v. Banc of America Securities, LLC, 355 F.3d 961, 965 (7th Cir. 2004).

Plaintiff argues the statutory scheme creates an inconsistent result for
retaliation claims – compensatory damages are available for retaliation claims
brought under Title VII, but not under the ADA. Plaintiff cites to cases, including
some from the Eighth Circuit, in which juries awarded compensatory damages for
ADA retaliation claims. See Foster v. Time Warner Entertainment Co., L.P., 250
F.3d 1189 (8th Cir. 2001); Stafne v. Unicare Homes, 266 F.3d 771 (8th Cir.
2001); Lovejoy-Wilson v. Noco Motor Fuels, Inc., 242 F. Supp. 2d 236, 240-41
(W.D.N.Y. 2003). While the cases cited did affirm awards of compensatory
damages, they did not – and particularly the Eighth Circuit cases –address the
legal issue of whether compensatory damages are authorized under the statutory
scheme. That is, as to Plaintiff’s cited opinions, the courts were not asked to
decide whether compensatory damages are permitted in ADA retaliation cases.

Relying heavily on the detailed statutory analysis and the decision in
Brown v. City of Lee’s Summit, 1999 WL 827768, *2-4 (W.D. Mo. 1999), the
Seventh Circuit in Kramer concluded that sections 12203, 2000e-5, and 1981a
do not expressly permit a recovery of compensatory damages in claims alleging
ADA retaliation. Kramer, 55 F.3d at 965 (citing Brown, 1999 WL 827768, at *3).
The vast majority of cases addressing the topic have held likewise. See Rhoads
v. F.D.I.C., 94 Fed.Appx. 187 (4th Cir. 2004)(unpublished); Alvarado, 588 F.3d at

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1265; Boe v. AlliedSingnal Inc., 131 F.Supp.2d 1197 (D. Kan. 2001); Johnson v.
Ed Bozarth #1 Park Meadows Chevrolet, Inc., 297 F.Supp.2d 1286, 1287-91 (D.
Colo. 2004); Sabbrese v. Lowe’s Home Centers, Inc., 320 F.Supp.2d 311, 331
(W.D. Pa. 2004); E.E.O.C. v. Faurecia Exhaust Sys., Inc., 601 F.Supp.2d 971
(N.D. Ohio 2008); Miles-Hickman v. David Powers Homes, Inc., 613 F.Supp.2d
872, 877-79 (S.D. Tex. 2009); but see Edwards v. Brookhaven Sci. Assocs.,
LLC, 390 F.Supp.2d 225, 236 (E.D.N.Y.2005) (interpreting section 1981a to
include compensatory damages for ADA retaliation claims).

The court agrees with the well-reasoned opinions of Kramer, Alvarado and
Brown and finds compensatory damages are not available for claims of
retaliation under the ADA.

The statutory language is unambiguous.

As

discussed thoroughly in the above referenced opinions, Sections 2003e-5 and
1981a(b) simply do not contain any language allowing for compensatory
damages for violations of section 12203.

Accordingly,

Plaintiff’s

claim

for

compensatory damages with respect to his ADA retaliation claim is stricken.

2.

Motion to Strike Jury Demand: ADA and Title VII Claims.

Plaintiff asserts he is entitled to a jury trial on his federal claims for
compensatory damages under Title VII and the ADA. A plaintiff’s right to recover
compensatory and punitive damages for intentional discrimination under the ADA
and Title VII is addressed in 42 U.S.C. § 1981a, which expressly states plaintiffs
have a right to a jury trial. 42 U.S.C. §1981a(c).

Having found compensatory damages are not allowed for a claim of
retaliation under the ADA, Plaintiff’s claim for a jury trial for compensatory
damages for ADA retaliation is moot. Thus, for the purposes of his federal law

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claims, the only remaining question is whether Plaintiff is entitled to a trial by jury
on his request for compensatory damages for ADA discrimination and Title VII
retaliation.

In support of its motion to strike the jury demand, Defendant cites to
several cases from this district which determined a plaintiff did not have a right to
a jury against a state or political subdivision. See Buss v. Douglas, 59 F.R.D.
334 (D. Neb. 1973); Pettigrew v. Valentine Community Schools, no. 4:11cv3166,
2012 WL 4894584 (D. Neb. 2012); Villanueva v. City of Scottsbluff, no.
4:11cv3185, 2012 WL 45406 (D. Neb. 2012); Teetor v. Dawson Public Power
Dist., no. 4:0cv3176, 2010 WL 415269 (D. Neb. 2010); and Ojeda v. City of
Scottsbluff, no. 4:08cv3067, 2008 WL 5100210 (D. Neb. 2008).

Buss involved a civil rights action under § 1983 by a plaintiff against a
public official. Buss conducted a historical analysis to determine whether the
Seventh Amendment’s jury trial guarantee extended to actions brought under §
1983, finding that in the absence of any statutory language in § 1983 providing
the right to a trial by jury, Plaintiff was not entitled to a trial by jury. See also
Pettigrew, 2012 WL 4894584 at *2 (no jury trial for a claim under the ADEA);
Villaneuva, 2012 WL 45406 at *1-2 (no right to a jury trial on claims under § 1983
and Nebraska common law claims for negligent infliction of emotional distress);
Teetor, 2010 WL 415269 at *1 (no jury trial for a claim under 29 U.S.C. § 1140).

The pivotal issue is whether the statutory language underlying the
Plaintiff’s claims secures the right to a jury trial.
In determining whether a plaintiff is entitled to a jury trial, the point of
departure is the statute itself. Tull v. United States, 481 U.S. 412,
417 n. 3, 107 S.Ct. 1831, 1835 n. 3, 95 L.Ed.2d 365 (1987). If the
statute in question expressly provides for a jury trial, that is the end
of the matter. If the statute is silent on the issue of jury trial, then it is
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necessary to inquire whether a jury trial is constitutionally required
under the Seventh Amendment. Id.; Chauffeurs Local No. 391 v.
Terry, 494 U.S. 558, 564 & n. 3, 110 S.Ct. 1339, 1344 & n. 3, 108
L.Ed.2d 519 (1990).
Pandazides v. Virginia Bd. of Educ., 13 F.3d 823, 827 (4th Cir. 1994).

Unlike the §1983 claims alleged in Buss, since § 1981a expressly and
unambiguously provides for a right to a jury trial for certain claims under the ADA
and Title VII, the inquiry need go no further.

See, e.g., Westcott v. City of

Omaha, no. cv88-o-28, 1988 WL 383125 at *4 (D. Neb. April 11, 1988) (where
there is no constitutional right to a trial by jury the court must look to the statute
under which the action is brought); Kennedy v. Alabama State Bd. of Educ., 78 F.
Supp. 2d 1246, 1250 (M.D. Ala. 2000) (Section 1981a expressly provides for a
jury trial). Whether, as Defendant argues, the Nebraska Political Subdivision Tort
Claims Act grants a right to a jury trial against a political subdivision, is not
relevant. The ADA, Title VII and the remedies available under § 1981a, including
the right to a jury trial, are uniquely federal and wholly separate from state law.
See DeVries v. Driesen, 766 F.3d 922, 924 (8th Cir. 2014) (discussing the
applicability of the Iowa State Tort Claims Act to a federal claim under § 1983).

Thus, to the extent Plaintiff seeks compensatory damages for his
intentional discrimination claims under the ADA and retaliation under Title VII,
Plaintiff is entitled to a jury trial as demanded.

3.

Motion to Strike Jury Demand: Nebraska State Law Claims.

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Plaintiff asserts claims for discrimination and retaliation based on
Nebraska state law pursuant to the NFEPA. Defendant again argues there is no
right to a jury trial against a political subdivision in the NFEPA.

Under Nebraska law, there was no historical right to a jury trial against the
State or its political subdivisions “because of the common-law doctrine of
sovereign immunity, and the related common-law doctrine of governmental
immunity.”

Jacobsen v. Shresta, 849 N.W.2d 515, 521, 288 Neb. 615, 624

(2014). “The legislature has determined when and how it will waive the State’s
sovereign and governmental immunity.” Jacobsen, 849 N.W.2d at 522, 288 Neb.
at 625. A waiver of such immunity must be stated in express language or by
clear implication. Id.

There is no question the Nebraska legislature waived sovereign and
governmental immunity with respect to allowing a suit against a political
subdivision for an alleged violation of the NFEPA.

Political subdivisions are

expressly included in the list of employers in the definitional section of the
NFEPA.

See Neb. Rev. Stat. 48-1102(2).

However, there is no express

language preserving the right to a jury trial against a political subdivision of the
State.

The closest the NFEPA comes is a provision stating the “state and

governmental agencies created by the state may be sued upon claims under the
[NFEPA] in the same manner as provided by such law for suits against other
employers.” Neb. Rev. Stat. § 48-1126. The court finds this language is not an
express or clear waiver of governmental immunity with respect to a jury trial
against a political subdivision under the NFEPA. Plaintiff is not entitled to a trial
by jury on his NFEPA claims.

Accordingly,

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IT IS ORDERED that Defendant’s motion to strike is granted in part and
denied in part as follows:

1.

Defendant’s motion to strike Plaintiff’s claim for compensatory
damages for any alleged retaliation under the ADA (42 U.S.C.
12203) is granted.

2.

Defendant’s unopposed motion to strike Plaintiff’s request for
punitive damages is granted.

3.

Defendant’s motion to strike Plaintiff’s jury demand is granted as to
Plaintiff’s claims under the NFEPA and Plaintiff’s claim for retaliation
under the ADA. The motion is denied with respect to Plaintiff’s
claims for discrimination under the ADA and for retaliation under
Title VII.

Dated this 23rd day of August, 2017.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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