Lavalle-Cervantes v. International Hospitality Associates, S. en C. (SE)

Filing 93

OPINION and ORDER granting 84 Motion in Limine. Signed by US Magistrate Judge Bruce J. McGiverin on June 14, 2016. (McGiverin, Bruce)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
ALEJANDRA LAVALLE-CERVANTES,
Plaintiff,
v.
Civil No. 14-1356 (BJM)
INTERNATIONAL HOSPITALITY
ASSOCIATES, S. en C. (SE), d/b/a Hotel La
Concha, et al.,
Defendants.
OPINION AND ORDER
Alejandra Lavalle Cervantes (“Lavalle”) brought this action against International
Hospitality, Inc. and International Hospitality Associates, S. en C. (SE), d/b/a Hotel La
Concha (collectively, “the Hotel”), alleging discrimination and retaliation in violation of
the Americans with Disabilities Act (“ADA” or “Act”), 42 U.S.C. § 12101 et seq., and
several state-law provisions.1 The Hotel previously moved for summary judgment, and
only two claims survived: the ADA retaliation claim and the Puerto Rico Law 80 claim.2
Docket No. 80. The Hotel filed a motion in limine, arguing that the ADA retaliation claim
does not provide for compensatory or punitive damages and, therefore, Lavalle is not
entitled to try that claim before a jury. Docket Nos. 84, 87. Lavalle opposed. Docket No.
85. The case is before me on consent of the parties. Docket No. 29.
For the reasons set forth below, the motion is GRANTED.
DISCUSSION
The Hotel contends that an ADA retaliation claim is remedied solely by equitable
relief, and so Lavelle is not entitled to have a jury hear the claim. Lavalle contends that
1

Law 44, P.R. Laws Ann. tit. 1, § 501; Law 80, P.R. Laws Ann. tit. 29, § 185a; Law 100,
P.R. Laws Ann. tit. 29, § 146; Law 115, P.R. Laws Ann. tit. 29, § 146; and Articles 1802 and
1803, P.R. Laws Ann. tit. 31, §§ 5141, 5142.
2
The latest amendment to the joint, proposed pretrial order (“proposed pretrial order”)
inaccurately states that the Law 44 claim still remains. Docket Nos. 80 at 33; 89-1 at 1.

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compensatory and punitive damages are available to remedy retaliation in violation of the
ADA. The Hotel’s motion does not address whether a jury trial is necessary for the Law
80 claim.3
The Act “is divided into three main subchapters known as ‘Titles’ and one
relevant subchapter, known as Title V. Title I forbids discrimination against individuals
with disabilities in the terms and conditions of employment; Title II prohibits
discrimination against the impaired in access to public services; and Title III proscribes
discrimination against disabled individuals in public accommodations.” Cardona Roman
v. Univ. of P.R., 799 F. Supp. 2d 120, 126 (D.P.R. 2011). An ADA retaliation claim arises
under Title V. Goodwin v. C.N.J., Inc., 436 F.3d 44, 51 (1st Cir. 2006) (citing 42 U.S.C. §
12203).
The ADA’s anti-retaliation provision states that “[n]o person shall discriminate
against any individual because such individual has opposed any act or practice made
unlawful by this chapter or because such individual made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under this chapter.”
42 U.S.C. § 12203(a). “Instead of delineating specific remedies available for retaliation
claims, section 12203(c) references the remedies and procedures available pursuant to 42
U.S.C. §§ 12117, 12133, and 12188.” Alvarado v. Cajun Operating Co., 588 F.3d 1261,
1264 (9th Cir. 2009) (citing 42 U.S.C. § 12203(c)). “Remedies available to a party
making a retaliation claim against an employer under the ADA are first determined by

In this vein, I also note that the Hotel’s portion of the proposed pretrial order
inaccurately states: “Given that only the retaliation claim remains, [it remains at issue] whether
Plaintiff can recover punitive and compensatory damages and whether the case need[s] to be tried
to the court and not to a Jury.” Docket No. 89-1 at 25 ¶ 7 (emphases added). Two causes of action
survived summary judgment, Docket No. 80 at 33, and so whether any part of the case must be
heard by a jury requires consideration of both the ADA retaliation claim and the Law 80 claim.
See Ross v. Bernhard, 396 U.S. 531, 537–38 (1970) (“where equitable and legal claims are joined
in the same action, there is a right to jury trial on the legal claims which must not be infringed
either by trying the legal issues as incidental to the equitable ones or by a court trial of a common
issue existing between the claims”).
3

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reference to 42 U.S.C. § 12117.” Kramer v. Banc of Am. Sec., LLC, 355 F.3d 961, 964
(7th Cir.), cert. denied, 542 U.S. 932 (2004).
After exploring the remedies available under § 12117, courts have held (though
not unanimously) that “compensatory and punitive damages are not available” to an
employee who brings “an ADA retaliation claim against an employer.” Kramer, 355 F.3d
at 965; Alvarado, 588 F.3d at 1270 (“ADA retaliation claims are redressable only by
equitable relief,” such as back pay); Bowles v. Carolina Cargo, Inc., 100 F. App’x 889,
890 (4th Cir. 2004) (same); Collazo-Rosado v. Univ. of P.R., 775 F. Supp. 2d 376, 388
(D.P.R. 2011) (“Punitive damages are not available for violation of ADA’s retaliation
provision”) (collecting cases). But see Edwards v. Brookhaven Sci. Assocs., LLC, 390 F.
Supp. 2d 225, 236 (E.D.N.Y. 2005) (“compensatory damages may be awarded on claims
of retaliation under the ADA as they are in Title I”); Ostrach v. Regents of the Univ. of
Cal., 957 F. Supp. 196, 200–01 (E.D. Cal. 1997) (same).
In determining that compensatory and punitive damages are unavailable for an
ADA retaliation claim, cases like Kramer and Alvarado have reasoned as follows: 42
U.S.C. § 12117 “references remedies provided by 42 U.S.C. §§ 2000e–4 through 2000e–
9.” Alvarado, 588 F.3d at 1264; Kramer, 355 F.3d at 965. Section 2000e-5(g)(1) does not
provide for compensatory or punitive damages. See Alvarado, 588 F.3d at 1264. And
though the remedies under § 2000e-5(g)(1) were expanded by 42 U.S.C. § 1981a for
“specified disability claims,” this latter provision did not include an ADA retaliation
claim (§ 12203) as one of the claims for which the remedies were expanded. See
Alvarado, 588 F.3d at 1264 (citing 42 U.S.C. § 1981a(a)(2)); Kramer, 355 F.3d at 965.
Accordingly, the “remedies available for ADA retaliation claims against an employer are
limited to the remedies set forth in § 2000e–5(g)(1).” Kramer, 355 F.3d at 965.
To suggest that compensatory and punitive damages are available for an ADA
retaliation claim, Lavalle, in step with the plaintiff in Alvarado, relies on four cases:
Salitros v. Chrysler Corp., 306 F.3d 562 (8th Cir. 2002); Foster v. Time Warner Entm't

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Co., 250 F.3d 1189 (8th Cir. 2001); EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241 (10th
Cir. 1999); and Muller v. Costello, 187 F.3d 298 (2d Cir. 1999). Docket No. 85 at 1–2;
Alvarado, 588 F.3d at 1265 n.4. This reliance is misplaced. As Alvarado reasoned, while
these cases “affirmed compensatory and punitive damage awards for ADA retaliation
claims,” they “did not address the statutory interpretation of 42 U.S.C. § 1981a, as they
involved only challenges to the sufficiency of the evidence supporting the jury awards.”
Alvarado, 588 F.3d at 1265 n.4 (citing Salitros, 306 F.3d at 570; Foster, 250 F.3d at
1196–97; Muller, 187 F.3d at 314–15; Wal–Mart Stores, 187 F.3d at 1248–49). And while
Lavalle further cites Baker v. Windsor Republic Doors, 414 F. App'x 764, 779 (6th Cir.
2011), Baker does not counsel a contrary result because the Sixth Circuit expressly
declined to consider the issue in that case. Thus, Lavalle’s ADA retaliation claim may be
remedied only by equitable relief.
Because “[t]here is no right to a jury where the only remedies sought (or
available) are equitable,” Kramer, 355 F.3d at 966, Lavalle is not entitled to try her ADA
retaliation claim before a jury. In the complaint, Lavalle requested that the Hotel be
ordered to “reinstate [her],” to “provid[e] her with full employment benefits and salary as
if the dismissal had not occurred,” and to “cease and desist from any further
discriminatory conduct.” Docket No. 1 at 8 ¶¶ F, G. Because these remedies are primarily
equitable-injunctive in nature, the court will determine whether, and the extent to which,
Lavalle is entitled to equitable relief for the ADA retaliation claim. See Ramos v. Roche
Prods., Inc., 936 F.2d 43, 50 (1st Cir. 1991) (“the rights requested are primarily equitableinjunctive in nature, requiring promotion and reinstatement, including backpay”).
The Hotel’s motion does not address the remaining Law 80 claim, P.R. Laws Ann.
tit. 29, § 185a, and Lavalle’s complaint demands a jury trial. Docket Nos. 1 at 8, 84.
“Law 80 imposes a monetary penalty on employers who dismiss employees without just
cause.” Otero-Burgos v. Inter Am. Univ., 558 F.3d 1, 7–8 (1st Cir. 2009); see also
Carrasquillo-Ortiz v. Am. Airlines, Inc., 812 F.3d 195, 196 (1st Cir. 2016). The Hotel has

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not argued that the remedy provided for by Law 80 is equitable (rather than legal) in
nature, and so this claim will be tried before a jury unless the Hotel demonstrates
otherwise. See United States v. Articles of Drug Consisting of Following: 5,906 Boxes,
745 F.2d 105, 112 (1st Cir. 1984) (“the Supreme Court has held that where factual issues
are ‘common’ between legal and equitable claims, the right to a jury trial cannot be
withheld”) (citing Dairy Queen, Inc. v. Wood, 369 U.S. 469, 479 (1962)); see also Ross,
396 U.S. at 537–38.
Moreover, in the interest of judicial economy, I intend to have the jury hearing the
Law 80 claim serve as an advisory jury for the the factual issue common to the ADA
retaliation claim. See Fed. R. Civ. P. 39(c)(1) (“In an action not triable of right by a jury,
the court, on motion or on its own . . . may try any issue with an advisory jury”); see also
Gragg v. City of Omaha, 20 F.3d 357, 358 (8th Cir. 1994) (“Having concluded the [statelaw] claim was not triable of right to a jury, the district court properly exercised its
initiative under Federal Rule of Civil Procedure 39(c) to try the claim with an advisory
jury”); Starr Int'l Co. v. Am. Int'l Grp., Inc., 623 F. Supp. 2d 497, 502 (S.D.N.Y.
2009)(“Courts may empanel an advisory jury in order to maximize efficiency and
convenience”); Bozeman v. Sloss Indus. Corp., 138 F.R.D. 590, 592 (N.D. Ala. 1991) (the
advisory “jury device may actually contribute to judicial economy rather than to subtract
from it”).
Federal Rule of Civil Procedure 39 “grants a district court the discretion to
empanel an advisory jury either on a party’s motion or sua sponte. The role of a jury so
empaneled is, as the name would suggest, purely advisory in nature; ‘[t]he responsibility
for the decision-rendering process remains with the trial judge’ and ‘it is in its discretion
whether to accept or reject, in whole or in part, the verdict or findings of the advisory
jury.’” United States v. Shields, 649 F.3d 78, 84 n.5 (1st Cir. 2011) (quoting Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 2335, at 354–56 (3d ed.
2008)); see also Banks v. Hanover S.S. Corp., 43 F.R.D. 374, 382 (D. Md. 1967) (“On its

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own initiative, under 39(c), the Court directs that the same jury serve as an advisory jury
with respect to the [“intertwined”] issues raised by the complaint and answer”).
In this case, there is a common question of fact between the Law 80 claim and the
ADA retaliation claim (i.e., whether the Hotel retaliated against Lavalle). See Collazo v.
Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 53 n.10 (1st Cir. 2010) (triable issue of fact
common to Title VII retaliation claim and Law 80 claim precluded summary judgment on
both claims). This being the case, an advisory jury’s recommended finding as to whether
the Hotel retaliated against Lavalle would expedite the adjudication of the two remaining
claims. See e.g., Starr Int'l Co., 623 F. Supp. 2d at 502 (“because many factual issues are
common to both the [equitable and legal claims], it will expedite matters for the jury and
the Court . . . if the jury is asked to render a ‘verdict’ (actually an advisory opinion) on
the” issues relating to the equitable claim). Thus, unless the Hotel demonstrates that the
remedy provided for by Law 80 is equitable-injunctive in nature, a jury will hear the Law
80 claim and that same jury will serve as an advisory jury for the factual issue common to
the ADA retaliation claim.
CONCLUSION
For the foregoing reasons, the motion is GRANTED. The ADA retaliation claim
may be remedied solely by equitable relief and, therefore, Lavalle is not entitled to try
that claim before a jury. The Law 80 claim remains scheduled to be heard by a jury, and I
intend to have that same jury serve as an advisory jury for the factual issue common to
the ADA retaliation claim. A jury trial is scheduled to begin on June 20, 2016. The parties
are urged to explore settlement.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 14th day of June 2016.
S/Bruce J. McGiverin
BRUCE J. MCGIVERIN
United States Magistrate Judge