Tannislado Alvarado v. Cajun Operating Company ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TANNISLADO ALVARADO, 
Plaintiff-Appellant, No. 08-15549
v.
 D.C. No.
04-CV-00631-CKJ
CAJUN OPERATING COMPANY, dba
AFC Enterprises, Inc., OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted
June 2, 2009—Las Vegas, Nevada
Filed December 11, 2009
Before: Johnnie B. Rawlinson and Jay S. Bybee,
Circuit Judges, and Larry Burns,* District Judge.
Opinion by Judge Rawlinson
*The Honorable Larry Burns, United States District Judge for the
Southern District of California, sitting by designation.
16379
16382 ALVARADO v. CAJUN OPERATING COMPANY
COUNSEL
Richard M. Martinez, Law Office of Richard M. Martinez,
Tucson, Arizona, for appellant Tannislado Alvarado.
Lori L. Voepel (argued) and Rachel Love, Jones, Skelton &
Hochuli, P.L.C., Phoenix, Arizona, for appellee Cajun Operat-
ing Co.
OPINION
RAWLINSON, Circuit Judge:
Appellant Tannislado Alvarado (Alvarado) filed a retalia-
tion claim pursuant to the Americans with Disabilities Act
(ADA) alleging that Appellee Cajun Operating Co. (Cajun)
retaliated against him for complaining that his manager had
discriminated against him based on his disability.
Alvarado challenges the district court’s grant of Cajun’s
motion in limine barring Alvarado from seeking punitive and
compensatory damages for his ADA retaliation claim. Alva-
rado also contends that the district court erred in holding that,
because ADA retaliation claims are limited to equitable relief,
Alvarado was not entitled to a jury trial on his retaliation
claim. We agree with the district court’s resolution of these
issues, and affirm the judgment.
I. BACKGROUND
At the age of sixty-five, Alvarado was hired by Jesus Tapia
(Tapia), the store manager of a Church’s Chicken (Church’s)
ALVARADO v. CAJUN OPERATING COMPANY 16383
in Tuscon, Arizona, to perform part-time maintenance work.
Alvarado eventually became a cook at Church’s. The cook
position required the performance of various duties, including
cleaning the walk-in refrigerator.
For approximately three and one-half years, Alvarado per-
formed satisfactorily according to job evaluations from Tapia
and his successor, Tina Montague (Montague). That all
changed when Alvarado called Church’s hotline to complain
that Montague had made inappropriate comments about his
age. When confronted, Montague denied any wrongdoing.
However, three days later she gave Alvarado his first Perfor-
mance Counseling Record (counseling record) delineating
Alvarado’s asserted failure to complete his daily duties, such
as panning and rotating chicken, battering chicken, and clean-
ing the walk-in refrigerator. Olivia Martinez (Martinez), an
assistant manager, gave Alvarado two additional counseling
records for similar derelictions. Martinez subsequently stated
that she only wrote the counseling records because Montague
told her to do so. According to Martinez, Alvarado did not
deserve the counseling records. However, over the next nine
months, Alvarado received four more similar counseling
records from assistant store manager Don Magel.
In response to the counseling reports, Alvarado called the
hotline a second time, accusing Montague of retaliation
against him for making the first hotline call. Alvarado also
complained to Montague about the pain in his hands when he
worked in the walk-in refrigerator. Montague referred Alva-
rado to Dr. Robert Johnson, who “cleared [Alvarado] to return
to work the same day after noting that [Alvarado] suffered
only from arthritis, a condition common among people his
age.”
After Alvarado was terminated, he filed a lawsuit against
Cajun alleging employment discrimination in violation of
Title I of the ADA, 42 U.S.C. § 12112; age discrimination in
violation of 29 U.S.C. § 623; race and national origin discrim-
16384 ALVARADO v. CAJUN OPERATING COMPANY
ination in violation of 42 U.S.C. § 1981; and employment dis-
crimination and retaliation claims pursuant to 29 U.S.C.
§ 215(a)(3) and 42 U.S.C. § 12203.1Cajun filed a motion in limine to bar Alvarado from seek-
ing punitive and compensatory damages for his ADA retalia-
tion claim. Cajun also asserted that, because only equitable
relief was available, Alvarado did not have a right to a jury
trial on his retaliation claim.
The district court granted Cajun’s motion in limine, con-
cluding that the plain language of 42 U.S.C. § 1981a(a)(2)
precluded compensatory damages, punitive damages, and trial
by jury.
The district court certified an interlocutory appeal on these
issues, and we granted permission to appeal the district
court’s interlocutory order.
II. STANDARD OF REVIEW
“We review a district court’s decision involving interpreta-
tion of a federal statute de novo.” In re Digimarc Corp. Deriv-
ative Litig., 549 F.3d 1223, 1229 (9th Cir. 2008) (citation
omitted).
III. DISCUSSION
Alvarado maintains that the district court erred in interpret-
ing the ADA to limit his remedies to those available in equity.
Alvarado posits that remedies provided under the ADA are
coextensive with remedies available under the Civil Rights
1
The district court granted summary judgment in favor of the employer
on Alvarado’s claim that he was discriminated against based on a disabil-
ity. However, the district court denied summary judgment on Alvarado’s
age discrimination and retaliation claims. According to the district court,
Alvarado decided not to pursue his claims premised on race and national
origin discrimination.
ALVARADO v. CAJUN OPERATING COMPANY 16385
Acts of 1964 and 1991. More specifically, Alvarado contends
that because compensatory and punitive damages are avail-
able under the Civil Rights Acts, compensatory and punitive
damages are available for ADA retaliation claims.
[1] Under the ADA, 42 U.S.C. § 12203(a), the anti-
retaliation provision, provides:
No person shall discriminate against any individual
because such individual has opposed any act or prac-
tice made unlawful by this chapter or because such
individual made a charge, testified, assisted, or par-
ticipated in any manner in an investigation, proceed-
ing, 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. See 42 U.S.C. § 12203(c). In
turn, 42 U.S.C. § 12117 references remedies provided by 42
U.S.C. §§ 2000e-4 through 2000e-9. See 42 U.S.C.
§ 12117(a).
Section 2000e-5(g)(1) provides:
If the court finds that the respondent has intention-
ally engaged in or is intentionally engaging in an
unlawful employment practice charged in the com-
plaint, the court may enjoin the respondent from
engaging in such unlawful employment practice, and
order such affirmative action as may be appropriate,
which may include, but is not limited to, reinstate-
ment or hiring of employees, with or without back
pay (payable by the employer, employment agency,
or labor organization, as the case may be, responsi-
ble for the unlawful employment practice), or any
other equitable relief as the court deems appropriate.
Back pay liability shall not accrue from a date more
16386 ALVARADO v. CAJUN OPERATING COMPANY
than two years prior to the filing of a charge with the
Commission. Interim earnings or amounts earnable
with reasonable diligence by the person or persons
discriminated against shall operate to reduce the
back pay otherwise allowable.
42 U.S.C. § 2000e-5(g)(1).
[2] 42 U.S.C. § 1981a expanded the remedies available pur-
suant to 42 U.S.C. § 2000e-5 by providing for punitive and
compensatory damages for specified disability claims. Section
1981a(a)(2) states:
In an action brought by a complaining party under
the powers, remedies, and procedures set forth in
section 706 or 717 of the Civil Rights Act of 1964
[42 U.S.C.A. §§ 2000e-5 or 2000e-16] (as provided
in section 107(a) of the Americans with Disabilities
Act of 1990 (42 U.S.C. 12117(a)), and section
794a(a)(1) of Title 29, respectively) against a
respondent who engaged in unlawful intentional dis-
crimination (not an employment practice that is
unlawful because of its disparate impact) under sec-
tion 791 of Title 29 and the regulations implement-
ing section 791 of Title 29, or who violated the
requirements of section 791 of Title 29 or the regula-
tions implementing section 791 of Title 29 concern-
ing the provision of a reasonable accommodation, or
section 102 of the Americans with Disabilities Act of
1990 (42 U.S.C. 12112), or committed a violation of
section 102(b)(5) of the Act, against an individual,
the complaining party may recover compensatory
and punitive damages as allowed in subsection (b) of
this section, in addition to any relief authorized by
section 706(g) of the Civil Rights Act of 1964, from
the respondent.
ALVARADO v. CAJUN OPERATING COMPANY 16387
42 U.S.C. § 1981a(a)(2) (emphasis added). Noticeably absent
is any reference to 42 U.S.C. § 12203, the ADA retaliation
provision.
[3] Although we have not resolved whether compensatory
and punitive damages are available for ADA retaliation claims,2
other courts have applied divergent approaches to interpret the
ADA’s remedial provisions. In Kramer v. Banc of Am. Sec.,
355 F.3d 961 (7th Cir.), cert. denied 542 U.S. 932 (2004), the
Seventh Circuit held that punitive and compensatory damages
were not available for ADA retaliation claims. The Seventh
Circuit opined:
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 com-
pensatory 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 retalia-
tion under the ADA (§ 12203) are not listed, com-
pensatory and punitive damages are not available for
such claims. Instead, the remedies available for
ADA retaliation claims against an employer are lim-
ited to the remedies set forth in § 2000e-5(g)(1).
2
In Gribben v. United Postal Serv., Inc., 528 F.3d 1166, 1172 (9th Cir.
2008), we addressed the district court’s refusal to provide a punitive dam-
ages instruction in a case involving an ADA retaliation claim. However,
we did not squarely confront the issue presented by this case, as we held
that there was insufficient evidence of retaliation to warrant a punitive
damages instruction. See id.16388 ALVARADO v. CAJUN OPERATING COMPANY
Kramer, 355 F.3d at 965 (citation omitted). The Seventh Cir-
cuit, therefore, held that “[b]ecause 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.” Id. at 966; see also Miles-
Hickman v. David Powers Homes, Inc., 613 F. Supp. 2d 872,
878-79 (S.D.Tex. 2009); E.E.O.C. v. Faurecia Exhaust Sys.,
Inc., 601 F. Supp. 2d 971, 976 (N.D. Ohio 2008); Sabbrese
v. Lowe’s Home Ctrs., Inc., 320 F. Supp. 2d 311, 331 (W.D.
Pa. 2004); Johnson v. Ed Bozarth #1 Park Meadows Chevro-
let, Inc., 297 F. Supp. 2d 1286, 1289 (D. Colo. 2004); Sink v.
Wal-Mart Stores, Inc., 147 F. Supp. 2d 1085, 1100-01 (D.
Kan. 2001).3,4
[4] Several district courts have also held to the contrary. In
Ostrach v. Regents of the Univ. of Cal., 957 F. Supp. 196, 201
(E.D. Cal. 1997), the district court emphasized section
1981a’s use of the term “complaining party.” The district
court observed that:
The statute extends to aggrieved plaintiffs the reme-
dies available pursuant to sections 107, 203 and 308
of the Act. In turn, Congress has provided that in an
3
In two unpublished opinions, the Fourth Circuit followed Kramer, and
held that punitive and compensatory damages were unavailable for ADA
retaliation claims. See Bowles v. Carolina Cargo, Inc., 100 Fed. Appx.
889, 890 (4th Cir. 2004); see also Rhoads v. F.D.I.C., 94 Fed. Appx. 187,
188 (4th Cir. 2004).
4
Alvarado relied on Salitros v. Chrysler Corp., 306 F.3d 562 (8th Cir.
2002), Foster v. Time Warner Entm’t Co., 250 F.3d 1189 (8th Cir. 2001),
Muller v. Costello, 187 F.3d 298 (2d Cir. 1999), and E.E.O.C v. Wal-Mart
Stores, Inc., 187 F.3d 1241 (10th Cir. 1999), all of which affirmed com-
pensatory and punitive damage awards for ADA retaliation claims. How-
ever, those cases did not address the statutory interpretation of 42 U.S.C.
§ 1981a, as they involved only challenges to the sufficiency of the evi-
dence supporting the jury awards. See 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.
ALVARADO v. CAJUN OPERATING COMPANY 16389
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 complain-
ing party may recover compensatory and punitive
damages. In turn, complaining party is defined by
the Civil Rights Act of 1991 to include persons who
bring actions under Title I of the Americans with
Disabilities Act, and thus would appear to include
suits charging retaliation.
Ostrach, 957 F. Supp. at 201 (citations, alterations, footnote
reference, and internal quotation marks omitted). Based on
this broad application of section 1981a’s terms, the district
court held that it “must presume the availability of all appro-
priate remedies unless Congress has expressly indicated oth-
erwise.” Id. (citation and internal quotation marks omitted).
Thus, the district court held that the plaintiff could pursue
general damages pursuant to the ADA’s retaliation provision.
Id.5
In Edwards v. Brookhaven Sci. Assocs., LLC, 390 F. Supp.
2d 225, 236 (E.D. N.Y. 2005), the district court expressly
rejected the Seventh Circuit’s approach in Kramer. The dis-
trict court emphasized the coextensive nature of Title I’s rem-
edies, explaining that:
5
It is also notable that the district court in Ostrach relied on Franklin
v. Gwinnett County Pub. Schs., 503 U.S. 60 (1992), for the proposition
that it could award any available remedies. Ostrach, 957 F. Supp. at 201.
However, in Franklin, the Supreme Court determined that Title IX’s
implied right of action necessitated the formulation of a corresponding
remedy. See Franklin, 503 U.S. at 71 (“Since the Court . . . concluded that
this statute supported no express right of action, it is hardly surprising that
Congress also said nothing about the applicable remedies for an implied
right of action.”).
16390 ALVARADO v. CAJUN OPERATING COMPANY
The Seventh Circuit’s analysis makes it clear that
§ 1981(a)(1) does not list § 12203 as a claim that
permits recovery of compensatory damages. How-
ever, no sound canon of interpretation requires Con-
gress to speak with extraordinary clarity. The statute
must be read in conjunction with and in light of the
context, structure, and related statutory provisions.
In the Court’s view, the omission of § 12203 in
§ 1981 is of no consequence when § 1981 is read in
conjunction with the relevant provisions of the ADA.
As stated above, the retaliation provision of the
ADA contains no remedy of its own. Rather, it is
clear that the remedies and procedures available to
aggrieved persons for violations of § 12203 are the
same as the remedies and procedures available under
Title I of the ADA. Considering that the remedies
available for retaliation under the ADA are commen-
surate with those available under Title I, it was
unnecessary for Congress to separately mention
retaliation in § 1981. Thus, it is fair to assume that
the expansive effect of § 1981(a) applies equally to
claims under Title I as it does to retaliation claims by
virtue of the fact that the remedies available for
retaliation claims incorporate, and are coextensive
with, the remedies available under Title I.
Edwards, 390 F. Supp. 2d at 236 (citations, alterations, and
internal quotation marks omitted). The district court con-
cluded that, because it could award plaintiff any remedy avail-
able under the law, compensatory damages were in play for
ADA retaliation claims. Id.; see also Rumler v. Dept. of
Corrs., 546 F. Supp. 2d 1334, 1342-43 (M.D. Fla. 2008);
Lovejoy-Wilson v. Noco Motor Fuels, Inc., 242 F. Supp. 2d
236, 240-41 (W.D. N.Y. 2003).
The analysis employed in Edwards has been criticized. In
Infantolino v. Joint Indus. Bd. of Elec. Indus., 582 F. Supp. 2d
351, 362 (E.D.N.Y. 2008), the district court observed that sec-
ALVARADO v. CAJUN OPERATING COMPANY 16391
tion 1981a’s failure to include ADA retaliation claims may
have been an oversight.6 The district court nonetheless
rejected the reasoning of Edwards “because the relevant pro-
vision of the Civil Rights Act of 1991 authorizes additional
remedies for violations of Title I (specifically, punitive and
compensatory damages), and does not even mention Title V.”
Id. at 363 (citation omitted).
Similarly, in Arredondo v. S2 Yachts, 496 F. Supp. 2d 831,
835 (W.D. Mich. 2007), the district court commented:
The court in Edwards did not explain what meaning,
if any, would be given to the references to §§ 12112
and 12112(b)(5) in § 1981a(a)(2) under its construc-
tion of the statute. Section 1981a is referenced in
three additional ADA related statutes, 2 U.S.C.
§ 1311, 3 U.S.C. § 411 and 42 U.S.C. § 1988. None
of these three other statutes provide a context in
which the references to §§ 12112 and 12112(b)(5) in
§ 1981a would have any meaning if the Court
adopted the position of the Court in Edwards. Addi-
tionally, Plaintiff has not identified any situation in
which the references to §§ 12112 and 12112(b)(5) in
§ 1981a(a) (2) would have any meaning if the Court
adopted Plaintiff’s proposed interpretation of
§ 1981a(a)(2). Thus, the position adopted by the
court in Edwards voids the references to §§ 12112
and 12112(b)(5) in § 1981a(a)(2) of any meaning in
any conceivable context.
6
Even if the unambiguous text of § 1981a could be fairly characterized
as a drafting error, we lack authority to provide the necessary correction.
See Stratman v. Leisnoi, Inc., 545 F.3d 1161, 1172 (9th Cir. 2008) (“If
Congress enacted into law something different from what it intended, then
it should amend the statute to conform it to its intent. It is beyond our
province to rescue Congress from its drafting errors, and to provide for
what we might think is the preferred result.”) (citation, alteration, and
internal quotation marks omitted).
16392 ALVARADO v. CAJUN OPERATING COMPANY
(citations and footnote reference omitted).
In addition, the Seventh Circuit eschewed the reasoning of
Ostrach because of the district court’s parsing of section
1981a’s language. Specifically, the Seventh Circuit observed
that the district court’s analysis omitted the specific ADA sec-
tions referenced in section 1981a. See Kramer, 355 F.3d at
966 (“Significantly, what is omitted . . . is crucial to the ques-
tion 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 retalia-
tion, § 203 of the ADA (42 U.S.C. § 12203), is not listed.”).
[5] The lack of uniformity among the courts underscores
the complexity of this issue. Nevertheless, we are persuaded
that the Seventh Circuit’s reliance on the plain language of 42
U.S.C. § 1981a(a)(2) adheres more closely to the precepts of
statutory construction.
[6] “The starting point for the interpretation of a statute is
always its language, and courts must presume that a legisla-
ture says in a statute what it means and means in a statute
what it says there[.]” Azarte v. Ashcroft, 394 F.3d 1278, 1285
(9th Cir. 2005) (citations, alteration, and internal quotation
marks omitted). We must “determine whether the language at
issue has a plain and unambiguous meaning with regard to the
particular dispute in the case. Any inquiry must cease if the
statutory language is unambiguous and the statutory scheme
is coherent and consistent.” Gorospe v. C.I.R., 451 F.3d 966,
968 (9th Cir. 2006) (citation and alteration omitted). “A fre-
quently stated principle of statutory construction is that when
legislation expressly provides a particular remedy or reme-
dies, courts should not expand the coverage of the statute to
subsume other remedies.” Williams v. United Airlines, Inc.,
500 F.3d 1019, 1024 (9th Cir. 2007) (citation omitted).
[7] The text of section 1981a is not ambiguous. It explicitly
delineates the specific statutes under the ADA for which puni-
ALVARADO v. CAJUN OPERATING COMPANY 16393
tive 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 equita-
ble relief only pursuant to 42 U.S.C. § 2000 e-5(g)(1). See,
e.g., Lutz v. Glendale Union High Sch., 403 F.3d 1061, 1067-
69 (9th Cir. 2005).
[8] We acknowledge that legislative history ostensibly sup-
ports the notion that Congress intended a broad remedial pur-
pose for the Civil Rights Act of 1991. See, e.g., H.R. Rep.
102-40(II), at 27 (1991), reprinted in 1991 U.S.C.C.A.N. 694,
721 (“All too frequently, Title VII leaves victims of employ-
ment discrimination without remedies of any kind of [sic]
their injuries and allows employers who intentionally discrim-
inate to avoid any meaningful liability.”) (footnote reference
omitted). However, the legislative history is not dispositive,
because the text of section 1981a is unambiguous. Indeed, we
have long held that where a statute is unambiguous, we need
not resort to legislative history in applying the statute. See
United States v. Sioux, 362 F.3d 1241, 1246 (9th Cir. 2004)
(“[I]t is well-settled that reference to legislative history is
inappropriate when the text of the statute is unambiguous.”)
(citations and internal quotation marks omitted).
[9] In sum, although a convoluted analytical path exists to
concluding that punitive and compensatory damages are
16394 ALVARADO v. CAJUN OPERATING COMPANY
available for ADA retaliation claims, this analysis contra-
venes the basic tenets of statutory construction. As the district
court in Faurecia Exhaust Sys., Inc., opined:
Nowhere does the statutory text provide for compen-
satory or punitive damages on a claim under
§ 12203. It is no herculean task to follow the interre-
lated statutory references to determine which reme-
dies are available on a given claim. By performing
the statutory analysis, it is plain that any interpreta-
tion of § 1981a(a)(2) as providing for compensatory
or punitive damages for a § 12203 retaliation claim
empties the former’s explicit references to §§ 12112
and 12112(b)(5) of any meaning. Consequently, such
an interpretation is untenable. Conversely, the inter-
pretation arrived at by the Seventh Circuit in
Kramer, which gives full effect to those same refer-
ences, comports with the relevant principles of statu-
tory construction and is, therefore, highly persuasive.
Faurecia Exhaust Sys., Inc., 601 F. Supp. 2d at 975-76 (foot-
note reference omitted).
We are not otherwise convinced by the reasoning in the
recent case of Baker v. Windsor Republic Doors, No. 1:06-cv-
01137, ___ F. Supp. 2d ___, 2009 WL 2064584 (W.D. Tenn.
July 10, 2009). Relying on Gomez-Perez v. Potter, 128 S.Ct.
1931 (2008), the district court held that compensatory dam-
ages are available for ADA retaliation claims. Baker, 2009
WL 2064584, at *4. However, Gomez-Perez, a case involving
the Age Discrimination in Employment Act (ADEA), did not
even address the ADA’s remedial provisions. Rather, the
Supreme Court decided “whether the [ADEA’s] statutory
phrase ‘discrimination based on age’ includes retaliation
based on the filing of an age discrimination complaint.” 128
S.Ct. at 1936. Specifically, the Supreme Court “interpret[d]
the ADEA federal-sector provision’s prohibition of discrimi-
nation based on age as likewise proscribing retaliation.” Id. at
ALVARADO v. CAJUN OPERATING COMPANY 16395
1937 (internal quotation marks omitted). Although the
Supreme Court held that the ADEA’s anti-discrimination pro-
vision encompassed a cause of action for retaliation, the
Supreme Court did not address the applicable statutory reme-
dies, and in no way undermined the proposition that “when
legislation expressly provides a particular remedy or reme-
dies, courts should not expand the coverage of the statute to
subsume other remedies.” Nat’l R.R. Passenger Corp. v. Nat’l
Ass’n of R.R. Passengers, 414 U.S. 453, 458 (1974).
Thus, Gomez-Perez is inapposite, particularly when consid-
ering that Congress may well have intentionally distinguished
between the remedies for ADA discrimination claims and
ADA retaliation claims due to the different nature of the
respective claims. “The ADA prohibits discrimination against
a qualified individual with a disability in regard to terms, con-
ditions and privileges of employment.” Gribben, 528 F.3d at
1169 (citation omitted) (emphasis added). In contrast, a retali-
ation claim does not necessarily depend on the plaintiff’s
proof of a disability. Instead, “[a] prima facie case of retalia-
tion requires a plaintiff to show: (1) involvement in a pro-
tected activity, (2) an adverse employment action and (3) a
causal link between the two.” Coons v. Sec’y of U.S. Dept. of
Treasury, 383 F.3d 879, 887 (9th Cir. 2004) (citation and
internal quotation marks omitted). Congress may have well
advisedly limited punitive and compensatory damage awards
to those plaintiffs who are able to prove discrimination due to
an actual disability.
Alvarado’s claims exemplify this dichotomy. The district
court granted summary judgment in favor of Church’s on
Alvarado’s ADA discrimination claim because Alvarado did
not raise a material issue of fact regarding whether he was
disabled. However, the district court denied summary judg-
ment on Alvarado’s retaliation claim because Alvarado’s
“Hotline complaints clearly constitute a protected activity,
regardless of the merit of his discrimination charges.”
16396 ALVARADO v. CAJUN OPERATING COMPANY
Because Alvarado raised material issues of fact regarding his
retaliation claim, summary judgment was inappropriate.
[10] Being persuaded by the Seventh Circuit’s reasoning,
we hold, as did the Seventh Circuit in Kramer, that the plain
and unambiguous provisions of 42 U.S.C. § 1981a limit the
availability of compensatory and punitive damages to those
specific ADA claims listed. ADA retaliation is not on the list.7
Because we conclude that ADA retaliation claims are redress-
able only by equitable relief, no jury trial is available. See
Danjaq LLC v. Sony Corp., 263 F.3d 942, 962 (9th Cir. 2001)
(“The Seventh Amendment preserves the right to trial by jury
of all legal claims, whereas no right to a jury exists for equita-
ble claims.”) (citation, alterations, and internal quotation
marks omitted).
7
Alvarado relies on the EEOC Compliance Manual to support his con-
tention regarding the availability of compensatory and punitive damages.
We acknowledge that the EEOC Manual is generally entitled to deference.
See Nilsson v. City of Mesa, 503 F.3d 947, 954 n.3 (9th Cir. 2007). How-
ever, the EEOC Manual does not resolve the statutory interpretation issue
we confront. Without mentioning § 1981a, the EEOC Manual provides
that “[a] 1977 amendment to the Fair Labor Standards Act authorizes both
legal and equitable relief for retaliation claims under that Act. Compensa-
tory and punitive damages therefore are available for retaliation claims
brought under the EPA and the ADEA, as well as under Title VII and the
ADA.” See EEOC Compliance Manual, 5/20/98, Section 8-III B. and nn.
56-57, available at http://www.eeoc.gov./policy/docs/retal.html, last vis-
ited 12/3/09. However, the Manual references only 29 U.S.C. § 216, Mos-
kowitz v. Trs. of Purdue Univ., 5 F.3d 279 (7th Cir. 1993), and Soto v.
Adams Elevator Equip. Co., 941 F.2d 543 (7th Cir. 1991). Section 216 and
the corresponding cases involve the Fair Labor Standards Act, not Title
VII or the ADA. See 29 U.S.C. § 216(b); Moskowitz, 5 F.3d at 283; Soto,
941 F.2d at 551. Because the EEOC Manual did not contain a reasoned
analysis of the issue we address, there is no EEOC position to which we
defer. See E.E.O.C. v. Puget Sound Log Scaling & Grading Bureau, 752
F.2d 1389, 1391 (9th Cir. 1985) (recognizing that no deference is owed
if the EEOC does not provide “a reasoned and supportable interpretation
of the applicable statute.”) (citation and alteration omitted).
ALVARADO v. CAJUN OPERATING COMPANY 16397
IV. CONCLUSION
[11] We adopt the Seventh Circuit’s reasoning in Kramer,
and hold that punitive and compensatory damages are not
available for ADA retaliation claims. Because such claims are
limited to the equitable relief specified in 42 U.S.C. § 2000e-
5(g)(1), the district court correctly concluded that Alvarado
was not entitled to a jury trial on his ADA retaliation claims.
AFFIRMED.