Kramer, Colleen P. v. Banc America ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3662
COLLEEN P. KRAMER,
Plaintiff-Appellant,
v.
BANC OF AMERICA SECURITIES, LLC,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 6768—James B. Zagel, Judge.
____________
ARGUED SEPTEMBER 17, 2003—DECIDED JANUARY 20, 2004
____________
Before RIPPLE, MANION, and WILLIAMS, Circuit Judges.
MANION, Circuit Judge. Colleen Kramer sued her former
employer, Banc of America Securities, LLC (“BOA”), for,
among other things, retaliatory discharge in violation of the
Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.
(the “ADA”). After a bench trial, the district court found in
favor of BOA. On appeal we must determine whether com-
pensatory and punitive damages are available as a remedy
for a retaliation claim against an employer under the ADA.
We affirm the district court’s decision to deny consideration
2 No. 02-3662
of compensatory and punitive damages, and its decision to
conduct the trial in this case without a jury.
I.
Colleen Kramer worked in BOA’s Chicago, Illinois office
from October 1995 until October 1999 . Her responsibilities
included heading a team responsible for the structuring of
loans for middle market companies so that the loans could
be syndicated to other financial institutions. In October
1998, BOA and NationsBank merged. As a result of this
merger, Kramer began reporting to a new supervisor, Mary
Lynn-Moser.
Although Moser was impressed by the performance of
Kramer’s team during early 1999, Moser was critical of
Kramer’s job performance, particularly Kramer’s leadership
skills and interpersonal skills. At the end of May 1999,
Moser replaced Kramer as team leader with another em-
ployee, although Kramer retained her salary and title as
managing director. Moser also gave Kramer a memoran-
dum critiquing Kramer’s performance and stating that
Kramer would need to improve her performance within the
next 90 days.
In June 1999, Kramer responded to the demotion and
memorandum through a letter from her lawyer. The letter
demanded that she be reinstated as team leader and also
revealed that Kramer suffered from multiple sclerosis. This
was the first notice that BOA had of Kramer’s disease.
A few months later, on September 1, 1999, Moser wrote
another detailed memorandum that directed Kramer to,
within 30 days, improve her performance in several specific
areas or face termination of her employment. On September
24, 1999, Kramer filed a charge of disability discrimination
No. 02-3662 3
and retaliation with the United States Equal Employment
Opportunity Commission (the “EEOC”). Four days later,
Kramer sent Moser and Moser’s supervisor an e-
mail message notifying them of her charge. On September
30, 1999, the EEOC issued Kramer a Notice of Right to Sue.
On October 7, 1999, Moser informed Kramer that her em-
ployment with BOA was terminated. A little more than a
week later, on October 15, 1999, Kramer filed suit in the
United States District Court for the Northern District of
Illinois, alleging disability discrimination and retaliation
under the ADA and a state law claim for intentional inflic-
tion of emotional distress. The complaint sought front pay,
back pay, compensatory and punitive damages, reinstate-
ment, and attorney’s fees and costs.
On May 23, 2000, Kramer filed a second charge of discrim-
ination with the EEOC. This charge included an allegation
of retaliatory discharge. On June 13, 2000, the EEOC issued
her a second Notice of Right to Sue. Kramer filed an
Amended Complaint on May 2, 2001, in which she dropped
her state law causes of action. Both Kramer’s Complaint and
Amended Complaint demanded a jury trial on all issues.
BOA’s Answer and Answer to the Amended Complaint also
included demands for jury trial.
BOA filed a motion for summary judgment on all of
Kramer’s claims. On December 6, 2001, the district court
granted summary judgment in BOA’s favor on Kramer’s
disability claims, but denied BOA’s motion with respect to
Kramer’s claim of retaliatory discharge. Trial on Kramer’s
remaining claim was scheduled for May 13, 2002.
On May 3, 2002, BOA filed a Motion to Exclude
Compensatory and Punitive Damages and Strike Plaintiff’s
Jury Demand. In its motion, BOA asserted that compensa-
4 No. 02-3662
tory and punitive damages are not recoverable on a claim of
retaliation under the ADA. In addition, BOA argued that,
because Kramer was not entitled to recover compensatory
and punitive damages under the ADA, Kramer had no
statutory right to a jury trial.
The district court granted BOA’s motion on May 10, 2002.
The court found that compensatory and punitive damages
were not available as a remedy and that Kramer was not,
therefore, entitled to a jury trial. The district court also
refused to impanel an advisory jury.
The district court proceeded with a six-day bench trial on
Kramer’s retaliation claim, at the conclusion of which the
court ruled in favor of BOA. The district court entered
written findings of fact and conclusions of law on
September 11, 2002. This appeal followed.
II.
On appeal, Kramer argues that the district court erred in
ruling that the she was not entitled to seek compensatory
and punitive damages for a claim of retaliation under the
ADA. In a related argument, Kramer claims that, because
she was entitled to seek compensatory and punitive dam-
ages, she was entitled to a jury trial and it was reversible
error on the part of the district court to strike her jury
demand. Kramer also maintains that, independent of her
claim for compensatory and punitive damages, she was en-
1
titled to a jury trial because BOA consented to a jury.
1
Kramer also claims that she had a constitutional right to a jury
trial, even if this court finds that she was not entitled to recover
compensatory and punitive damages. Kramer provides no legal
(continued...)
No. 02-3662 5
A. Compensatory and Punitive Damages
Kramer contends that she is entitled to seek compensatory
and punitive damages for her claim of retaliation under the
ADA. This is a matter of statutory interpretation which is
subject to de novo review. Jones v. R.R. Donnelly & Sons, Co.,
305 F.3d 717, 722 (7th Cir. 2002).
Remedies available to a party making a retaliation claim
against an employer under the ADA are first determined by
reference to 42 U.S.C. § 12117. Section 12117, in turn,
provides that the available remedies are those provided by
the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e-4 through e-9.
42 U.S.C. § 12117(a). Section 2000e-5(g)(1) provides that a
court may order certain equitable relief including, but not
limited to, back pay, but it does not provide for compensa-
tory or punitive damages.
However, the 1991 Civil Rights Act, 42 U.S.C § 1981a
(a)(2), expands the remedies available under § 2000e-5(g)(1)
in certain circumstances, to provide for compensatory and
punitive damages. Specifically, § 1981a(a)(2) provides, in
pertinent part, that:
[i]n an action brought by a complaining party . . .
against a respondent who engaged in unlawful inten-
tional discrimination . . . under . . . section 102 of the
[ADA] or committed a violation of section 102(b)(5)
1
(...continued)
support for the one sentence in her brief dedicated to this
argument. The absence of any supporting authority or develop-
ment of an argument constitutes a waiver on appeal. See United
States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991) (“We have
repeatedly made clear that perfunctory and undeveloped argu-
ments that are unsupported by pertinent authority, are waived
(even where those arguments raise constitutional issues).”).
6 No. 02-3662
of the [ADA], against an individual, the complaining
party may recover compensatory and punitive
damages . . . .
42 U.S.C. § 1981a(a)(2)
Kramer argues that § 1981(a)(2) permits a plaintiff making
a claim of retaliation against an employer under the ADA to
recover compensatory damages. This question appears to be
one of first impression for federal circuit courts. We have
not found, and the parties have not cited any federal circuit
courts that have considered this question. Kramer directs
our attention to the decisions of three circuits—the Second,
Eighth and Tenth Circuits—that have affirmed jury verdicts
where compensatory and punitive damages had been
awarded on ADA retaliation claims. See, e.g., Salitros v.
Chrysler Corp., 306 F.3d 562, 570 (8th Cir. 2002); Muller v.
Costello, 187 F.3d 298, 314 (2d Cir. 1999); E.E.O.C. v. Wal-
Mart Stores, Inc., 187 F.3d 1241 (10th Cir. 1999). These
decisions focused on whether there was sufficient evidence
to award compensatory and punitive damages, but none
examined the legal question of whether such damages were
authorized for an ADA retaliation claim. The district courts
that have addressed the question are split. Compare Sink v.
Wal-Mart Stores, 147 F. Supp. 2d 1085, 1100-01 (D. Kans.
2001) (compensatory and punitive damages are not avail-
able for retaliatory discharge claim), Boe v. AlliedSignal Inc.,
131 F. Supp. 2d 1197, 1202-03 (D. Kans. 2001) (same), and
Brown v. City of Lee’s Summit, 1999 WL 827768, *2-*4 (W.D.
Mo. 1999) (same), with Lovejoy-Wilson v. NOCO Motor Fuels,
Inc., 242 F. Supp. 2d. 236, 240-41 (W.D. N.Y. 2003) (compen-
satory and punitive damages are available), Rhoads v. FDIC,
2002 WL 31755427, *1-*2 (D. Md. 2002) (same), and Ostrach
v. Regents of the University of California, 957 F. Supp. 196, 200-
01 (E.D. Cal. 1997) (same).
No. 02-3662 7
The district court’s analysis in Brown v. City of Lee’s
Summit is thorough and particularly persuasive. We agree
with that court’s conclusion that “a meticulous tracing of the
language of this tangle of interrelated statutes reveals no
basis for plaintiff’s claim of compensatory and punitive
damages in his ADA retaliation claim.” 1999 WL 827768, at
*3.
We thus 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) 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 re-
taliation claims against an employer are limited to the
remedies set forth in § 2000e-5(g)(1). See National R.R.
Passenger Corp. v. National 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.”).
The decisions of the district courts finding that com-
pensatory and punitive damages are available are not
persuasive. In Lovejoy-Wilson v. NOCO Motor Fuels, Inc.
and Rhoads v. FDIC, neither district court engaged in an
analysis of § 1981a(a)(2). Rather, Lovejoy-Wilson relies in part
8 No. 02-3662
on the fact that “courts within the Second Circuit have
routinely allowed juries to decide ADA retaliation claims.”
242 F. Supp. 2d at 240. As we pointed out above, the Second
Circuit in Muller did not address the underlying question of
whether compensatory and punitive damages are available.
The decision in Rhoads relied on the legislative history of the
ADA. 2002 WL 31755427, at *1. We need not resort to a
committee report’s summary of legislative intent when the
statute is specific. See McCoy v. Gilbert, 270 F.3d 503, 510 n.4
(7th Cir. 2001) (citing United States v. Hudspeth, 42 F.3d 1015,
1022 (7th Cir.1994) (en banc)) (“We need never consider
legislative history when interpreting an unambiguous
statute.”). The plain text of § 1981a(a)(2) is clear. See Connect-
icut Nat. Bank v. Germain, 503 U.S. 249, 253-54 (1992) (“We
have stated time and again that courts must presume that a
legislature says in a statute what it means and means in a
statute what it says there. When the words of a statute are
unambiguous, then this first canon is also the last: ‘judicial
inquiry is complete.’ ”) (citations omitted). Because the plain
language of § 1981a(a)(2) limits its application to specific
claims, it is inappropriate to expand the scope of the statute
in reliance on legislative history to include claims for
retaliation by an employer under the ADA.
Finally, we disagree with the district court’s analysis in
Ostrach v. Regents of the University of California. In that case,
the court quotes § 1981a(a)(2) as follows:
[i]n an action brought by a complaining party under the
powers, remedies and procedures set forth in § 716 or
717 of the Civil Rights Act of 1964 (as provided in
section 107(a) of the Americans with Disabilities Act of
1990) against a respondent who engaged in unlawful
intentional discrimination . . . the complaining party
may recover compensatory and punitive damages . . . .
No. 02-3662 9
Ostrach, 957 F. Supp. at 201. Significantly, what is omitted
by the first set of ellipses is crucial to the question at issue.
The omitted language lists the specific statutory sections for
which a party may recover compensatory and punitive
damages. The section providing an action for retaliation,
§ 203 of the ADA (42 U.S.C. § 12203), is not listed.
B. Kramer’s Right to a Jury Trial
Because Kramer was not entitled to recover compensatory
and punitive damages, she has no statutory or constitutional
right to a jury trial. The only remedies Kramer (or any
plaintiff bringing a claim of retaliation against an employer
under the ADA) was entitled to seek were equitable in
nature. See 42 U.S.C. § 2000e-5(g)(1) (stating that where an
employer has engaged in an unlawful employment practice,
a court may issue an injunction, reinstate the plaintiff
employee, order back pay, or award “any other equitable
relief as the court deems appropriate”) (emphasis added).
There is no right to a jury where the only remedies sought
(or available) are equitable. See, e.g., Marseilles Hydro Power,
LLC v. Marseilles Land and Water Co., 299 F.3d 643, 648 (7th
Cir. 2002) (“If the only relief sought is equitable . . . neither
the party seeking that relief nor the party opposing it is
entitled to a jury trial.”). We need not, therefore, address
Kramer’s argument that it was reversible error for the
district court to strike her demand for a jury trial; Kramer
had no statutory right to a jury trial.
We need, however, to address Kramer’s argument that,
independent of whether she was entitled to recover com-
pensatory and punitive damages, she was entitled to a jury
trial based on BOA’s consent as evidenced by its demand
for a jury trial in its answer to the Complaint and Amended
Complaint. Federal Rule of Civil Procedure 39(c) addresses
jury trials by consent.
10 No. 02-3662
(c) Advisory Jury and Trial by Consent. In all actions
not triable of right by a jury the court upon motion or of
its own initiative may try any issue with an advisory
jury or, except in actions against the United States when
a statute of the United States provides for trial without
a jury, the court, with the consent of both parties, may
order a trial with a jury whose verdict has the same
effect as if trial by jury had been a matter of right.
Fed. R. Civ. P. 39(c). This court has held that issues of back
pay and front pay are not beyond the scope of parties’ con-
sent to a jury trial. Pals v. Scheipel Buick & GMC Truck, Inc.,
220 F.3d 495, 501 (7th Cir. 2000).
Kramer claims that BOA consented to a jury trial when it
included a demand for a jury trial in its answer to her
Complaint and Amended Complaint. Once BOA consented,
Kramer argues, citing Fed. R. Civ. P. 38(d), it could not
withdraw such consent without Kramer’s permission.
Because she did not consent to such a withdrawal—she
opposed BOA’s motion to strike her jury demand—she
claims the court erred in granting BOA’s motion. The
district court disagreed. The court doubted that BOA had
actually consented to a jury trial on the issues of front and
back pay, but regardless, found that it was not too late for
BOA to withdraw its consent to a jury trial. The court also
declined to impanel an advisory jury. The court saw “no
point to the expense and time of an advisory jury, particu-
larly on an issue that I suspect I need no advice.”
In order to determine whether BOA properly withdrew its
consent to a jury trial it is important to review the events
leading up to and including BOA’s motion. Kramer’s
Complaint and Amended Complaint included a request for
remedies (compensatory and punitive damages) that, had
she been entitled to recover such remedies, would have
entitled her to a jury trial as a matter of right. See 42 U.S.C.
No. 02-3662 11
§ 1981a(c)(1) (“If a complaining party seeks compensatory
or punitive damages under this section any party may de-
mand a trial by jury.”). By including a demand for a jury
in her Complaint and Amended Complaint, Kramer suc-
cessfully exercised her right to have her claim heard by a
jury. Fed. R. Civ. P. 38(b). BOA also made a demand for a
jury trial in its answer to the Complaint and the Amended
Complaint, though strictly speaking, such a demand was
not necessary. The demand for a jury by one party is gen-
erally sufficient where the jury trial is of right.
Shortly before trial, BOA made a motion to exclude com-
pensatory and punitive damages. The district court granted
this motion. In this opinion we affirm the district court’s
decision. After the district court granted the motion, Kramer
had no right to a jury trial. As we have discussed, Kramer
was entitled to have her claim of retaliation (for which she
was entitled only to equitable remedies) heard by a jury
only if BOA consented and the district court agreed.
BOA also moved at the same time to strike Kramer’s jury
demand. In light of the district court’s decision that there
was no statutory right to a jury trial, this motion was
proper. Federal Rule of Civil Procedure 39(a) provides that
when a jury trial has been demanded and designated on the
docket as a jury trial, the trial shall be heard by a jury,
“unless . . . (2) the court upon motion or of its own initiative
finds that a right of trial by jury of some or all of those
issues does not exist under the Constitution or statutes of
the United States.” Fed. R. Civ. P. 39(a)(2) (emphasis
added).
Kramer’s reliance on Rule 38(d) for the proposition that
BOA could not withdraw a demand for a jury trial without
her consent, is misplaced. Rule 38, as is made clear by its
caption, is concerned with jury trials of right. Rule 38(d)’s
12 No. 02-3662
requirement that the other parties consent to a withdraw of
a demand permits those other parties to rely on the jury
demand to protect their right to a jury trial. See Partee v.
Buch, 28 F.3d 636, 636 (7th Cir. 1994) (“[T]he plaintiff . . .
was entitled to rely on the defendant’s jury demand and
was not required to file a separate jury demand on his
own.”); 9 Charles Alan Wright and Arthur R. Miller, Federal
Practice and Procedure § 2318 (3d. ed. 1995). Assuming
Kramer had a right to a jury trial (for instance, if she was
actually entitled to recover compensatory and punitive
damage), BOA could not withdraw a demand for a jury
trial. But Kramer had no right to a jury trial and there is no
restraint in the text of Rule 39 on the ability of a party to
withdraw its consent to a jury trial that is not of right. See
Thaler v. PRB Metal Products, Inc., 810 F. Supp. 49, 50 (E.D.
N.Y. 1993) (rejecting plaintiff’s argument that Rule 38(d)
prohibits a party from withdrawing its consent to a jury trial
that is not of right and noting that “plaintiff cites no author-
ity for the proposition that . . . consent cannot be withdrawn
prior to trial”).
The question then is whether BOA properly withdrew its
consent to a jury trial. The district court expressed some
doubt as to whether BOA had ever consented to a jury trial
on Kramer’s claims of front and back pay. We need not
address this question, however, because it is clear that, to
the extent BOA did consent to a jury trial, it withdrew that
consent with its motion to strike Kramer’s jury demand.
BOA filed its motion to strike Kramer’s jury demand two
weeks prior to the trial. The district court determined that
this was not too late in the litigation process and Kramer has
provided no reason why she was prejudiced by a bench trial
rather than a jury trial. See CPI Plastics, Inc. v. USX Corp., 22
F. Supp. 2d. 1373, 1378 (N.D. Ga. 1995) (granting motion to
strike jury demand two weeks before a trial and noting no
No. 02-3662 13
prejudice because there was no right to a jury, and a bench
trial would require less preparation than a jury trial). We
conclude that BOA properly withdrew its consent to a jury
2
trial.
Compensatory and punitive damages are not available to
a plaintiff bringing a claim of retaliation by an employer
under the ADA. Without the right to recover compensatory
and punitive damages, Kramer did not have a right to a jury
trial and she was entitled to a jury trial only with the
consent of BOA and the court. BOA properly withdrew its
consent to a jury trial. For these and the foregoing reasons,
we AFFIRM.
2
Of course not even the consent of BOA would have guaranteed
Kramer a jury trial. A district court is not obligated to use a jury
where one is not required even if both parties agree to use a jury.
Rule 39(c) clearly contemplates a role for the court in deciding to
use a jury where one is not required. Merex A.G. v. Fairchild
Weston Systems, Inc., 29 F.3d 821, 827 (2d Cir. 1994) (“[W]hen both
parties consent, Rule 39(c) invests the trial court with the
discretion—but not the duty—to submit an equitable claim to the
jury for a binding verdict. While the litigants are free to request
a jury trial on an equitable claim, they cannot impose such a trial
on an unwilling court.”).
14 No. 02-3662
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-20-04