Compensatory And Punitive Damages Are Not Available For Retaliation Claims Brought Pursuant To The Americans With Disabilities Act

In Alvarado v. Cajun Operating Company, (— F.3d —-, C.A.9 (Ariz.), December 11, 2009), the primary issue before the United States Court of Appeals was whether compensatory and punitive damages are available for Americans with Disabilities Act (“ADA”) retaliation claims. The Ninth Circuit Court of Appeals held such damages are not available for retaliation claims brought pursuant to the ADA.


Tannislado Alvarado (“Alvarado”) was sixty-five years old when he was hired to work at Church’s Chicken. Alvarado received satisfactory job evaluations for approximately three and one-half years. This changed after Alvarado called Church’s hotline to make a complaint that the store manager, Tina Montague (“Montague”), made inappropriate comments about his age. Montague denied any wrongdoing but three days later, Montague gave Alvarado his first “Performance Counseling Record” in which she stated Alvarado had failed to complete his daily duties. An assistant manager, Olivia Martinez (“Martinez”), gave Alvarado two similar counseling records. Martinez would later claim Alvarado did not deserve the counseling records, but that she wrote the records because Montague told her to do so. Another assistant manager gave Alvarado four more counseling records over the next nine months.

Alvarado called the hotline a second time and accused Montague of retaliating against him for making the first call to the hotline. After Alvarado complained of pain in his hands when he was required to work in the walk-in refrigerator, Montague referred Alvarado to a doctor who cleared Alvarado to return to work. The doctor told Alvarado he suffered from arthritis and that the condition was common among people his age.

Alvarado was subsequently terminated from his employment. He filed a lawsuit against his employer, Cajun Operating Company (“Cajun”), alleging employment discrimination in violation of Title I of the ADA, age discrimination, race and national origin discrimination, and employment discrimination and retaliation in violation of 29 U.S.C. § 215(a)(3), and 42 U.S.C. § 12203, which is the ADA’s retaliation provision. Cajun Operating Company filed a motion in limine to bar Alvarado from making claims for punitive and compensatory damages for his ADA retaliation claim. Cajun also claimed that only equitable relief was available for the ADA retaliation claim, and thus Alvarado did not have a right to a jury trial on this claim. The trial court granted Cajun’s motion in limine and Alvarado appealed.


The issue in this interlocutory appeal is whether the ADA limits the remedies for ADA retaliation claims to those available in equity. Alvarado argued the remedies under the ADA are coextensive with those available under the Civil Rights Acts of 1964 and 1991 and that, because compensatory and punitive damages are available under the Civil Rights Acts, they are also available for ADA retaliation claims. The Court of Appeals rejected Alvarado’s argument and held compensatory and punitive damages are not available for ADA retaliation claims and the only remedies for Alvarado’s retaliation claim are equitable in nature.

The ADA, at 42 U.S.C. § 12203(a), prohibits retaliation for opposing practices made unlawful by the ADA or for making a charge, testifying, assisting, or participating in an investigation proceeding or hearing related to the provisions of the ADA. Section 12203 does not set out the specific remedies for retaliation claims, but instead references the procedures and remedies available under 42 U.S.C. §§ 12117, 12133, and 12188. Title 42 U.S.C. § 12117, in turn references remedies provided in 42 U.S.C. §§ 2000e-4 through 2000e-9. Title 42 U.S.C. § 2000e-5(g)(1) provides that, if a court finds a respondent has intentionally engaged in an unlawful employment practice, 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, reinstatement or hiring of employees, with or without back pay . . . or any other equitable relief as the court deems appropriate.” Title 42 U.S.C. § 1981a expanded the remedies available under 42 U.S.C. § 2000e by providing for punitive and compensatory damages for specified disability claims, but the statute does not reference the ADA retaliation provision.

The court noted there is a lack of uniformity among other courts on the issue of whether compensatory and punitive damages are available for ADA retaliation claims. The Court of Appeals concluded however the text of § 1981a is not ambiguous. Section 1981a “explicitly delineates the specific statutes under the ADA for which punitive and compensatory damages are available” including 42 U.S.C. § 12112, which prohibits employment discrimination against a qualified individual with a disability, and 42 U.S.C. § 12112(b)(5), which addresses failure to make reasonable accommodations and denial of employment opportunities because of a disability. The court concluded, “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.”

The court held compensatory and punitive damages are not available for ADA retaliation claims, and such claims are limited to equitable relief. Accordingly, the Court of Appeals found the trial court “correctly concluded Alvarado was not entitled to a jury trial on his ADA retaliation claims.”


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