Labor & Employment – ADA Instructions Blamed for Small Jury Award

Gentry v. East West Partners Club Mgmt. Co. (Lawyers Weekly No. 001-044-16, 29 pp.) (Floyd, J.) No. 14-2382, March 4, 2016; USDC at Asheville, N.C. (Cogburn, J.) 4th Cir.

Holding: An executive housekeeper at a resort club who mediated her workers’ compensation claim, but who was terminated three years after she injured her left foot and ankle at work, cannot overturn her jury award of $20,000 in damages for disability discrimination under the Americans with Disabilities Act and other laws with challenges to the district court’s jury instructions under the ADA.

Causation Analysis

In Gross v. FBL Financial Servs. Inc., 557 U.S. 167 (2009), the Supreme Court considered whether Title VII’s “motivating factor” standard applied to claims brought under the Age Discrimination in Employment Act, which prohibits employers from discriminating against any individual because of such individual’s age. The court held that it did not, concluding that discrimination “because of” age mean that “age was the ‘reason’ that the employer decided to act.” Thus, a plaintiff must prove that age was the “but for” cause of the employer’s adverse decision.

The Supreme Court’s analysis in Gross dictates that outcome here. The ADA’s text does not provide that a plaintiff may establish liability by showing that disability was a motivating factor in an adverse employment decision. Furthermore, the 1991 Act that added the “motivating factor” standard to Title VII contemporaneously amended provisions of the ADA but did not add that standard. Joining the 6th and 7th Circuits, we conclude that Title VII’s “motivating factor” standard cannot be read into Title I of the ADA.

To invoke Title VII’s enforcement provisions, an ADA plaintiff must allege a violation of the ADA itself. The ADA’s text does not provide that a violation occurs when an employer acts with mixed motives.

The only remaining question is whether the ADA’s text calls for a “but for” causation standard. We hold that it does. The ADA prohibits discrimination “on the basis of” disability. We see no meaningful textual difference between this language and the terms “because of,” “by reason of,” or “based on” – terms that the Supreme Court has explained connote “but for” causation. We conclude the district court correctly applied a “but for” causation standard to plaintiff’s ADA claim.

Jury Instruction

Plaintiff also challenges the district court’s jury instructions on the definitions of disability. The district court instructed the jury that an impairment substantially limits a major life activity if it prevents or significantly restricts a person from performing the activity, compared to an average person in the general population. Plaintiff did not object to this instruction below, and we review for plain error.

Even if we assume the instruction was erroneous and the error was plain, plaintiff has not shown that at affected her substantial rights. She offers little to suggest that her disability discrimination claims failed because the jury believed that her impairment did not meet the district court’s definition of “substantially limits.” Plaintiff was not terminated until more than three years after her injury and more than two years after her surgery. At no point did her employers complain about her ability to perform her job duties. The strongest evidence she presented of disability discrimination was that the employer’s general manager allegedly admitting to a company executive that plaintiff was terminated “due to her disability.”

On this record, we cannot say there was a reasonable probability that the district court’s instruction affected the outcome of plaintiff’s disability discrimination claims. Plaintiff has failed to satisfy the plain error standard.

Plaintiff also contends the district court erred in instructing the jury on the “regarded as” prong of the disability definition. The district court instructed that disability discrimination laws are designed to protect individuals who may be perceived as disabled from being discriminated against in the workplace and that you must decide whether a perception that plaintiff was disabled was the “but for” reason that employer terminated plaintiff. Assuming plaintiff properly preserved an objection to this instruction, we do not see how she was prejudiced by it.

Finally, we reject plaintiff’s challenge to the district court instruction on “record of” disability, as plaintiff did not object to the instruction below and she does not explain how the omission of certain language applies to her case.

Insurance Evidence

Plaintiff also argues the district court erred in denying her motion to introduce evidence of employer’s insurance coverage and indemnification and in denying her motion for a new trial on damages. We find no basis for overturning this ruling. Plaintiff points to nothing in the record indicating appellees claimed they could not pay the judgment or suggested the jury should consider their financial condition in determining the damages to award. The court was within its discretion to find the evidence’s probative value was substantially outweighed by the danger of unfair prejudice.

Finally, we reject plaintiff’s contention that she is entitled to a new trial on damages because the jury’s $20,000 award was inadequate. Her damages expert testified that she incurred back pay damages of $133,093 and front pay damages of $297,568. Plaintiff concludes the jury apparently found that plaintiff failed to mitigate her damages and reduced her award. We find plaintiff has not met her substantial burden of showing that the district court abused its discretion. Her assertion that the award was reduced because of failure to mitigate is speculative. We affirm the denial of a motion for a new trial.