Alvarado v. Cajun Operating Co., No. 08-15549 (9th Cir. Dec. 11, 2009)

By Paul Mollica

The Ninth Circuit joins the Seventh Circuit in holding that the ADA anti-retaliation section, 42 U.S.C. § 12203, provides only for equitable remedies and hence no jury trial.

Alvarado v. Cajun Operating Co., No. 08-15549 (9th Cir. Dec. 11, 2009): Alvarado filed a retaliation claim under the Americans with Disabilities Act (ADA) alleging that the company fired him for complaining to his manager about disability discrimination. The district court held, granting a motion in limine prior to trial, that the remedy section governing ADA discrimination claims, 42 U.S.C. § 1981a(a)(2), did not encompass retaliation claims, and thus the employee could only seek equitable, make-whole relief (including back and front pay, but not compensatory or punitive damages).

On an interlocutory appeal, the Ninth Circuit affirms the grant of the motion in limine.  The panel notes that in the only published, U.S. Court of Appeals decision on the issue — Kramer v. Banc of Am. Sec., 355 F.3d 961 (7th Cir.), cert. denied, 542 U.S. 932 (2004) — the Seventh Circuit reached the same conclusion as the district court.  The panel lays out exhaustively the myriad district court decisions reaching differing interpretations of the statute, but holds that the plain language supported only one interpretation:

“The text of section 1981a is not ambiguous. It explicitly delineates the specific statutes under the ADA for which punitive and compensatory damages are available. In particular, section 1981a references 42 U.S.C. §§ 12112 and 12112(b)(5) of the ADA. See 42 U.S.C. § 1981a(a)(2). Section 12112 involves discrimination ‘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). Section 12112(b)(5) encompasses the failure to make reasonable accommodations and denial of employment opportunities based on a disability. Section 1981a, therefore, limits its remedial reach to ADA discrimination claims, and does not incorporate ADA retaliation claims brought pursuant to 42 U.S.C. § 12203. This limitation is unsurprising because ADA retaliation claims have been historically redressed by equitable relief only pursuant to 42 U.S.C. § 2000 e-5(g)(1).”

The court rejects a more expansive interpretation of § 1981a(a)(2), supported by the ADA legislative history and the EEOC Compliance Manual.  It also recognizes that the disparity of remedies between discrimination and retaliation claims might have simply been the product of sloppy drafting, but “even if the unambiguous text of § 1981a could be fairly characterized as a drafting error, we lack authority to provide the necessary correction.”