99-2509
IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
No. 99-2509
CHERYL A. GILE,
Plaintiff-Appellee,
v.
UNITED AIRLINES, INC.,
Defendant-Appellant.
On Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division
Honorable Rebecca R. Pallmeyer, Judge
BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION AS AMICUS CURIAE IN SUPPORT OF THE
PLAINTIFF-APPELLEE'S PETITION FOR REHEARING
AND PETITION FOR REHEARING EN BANC
C. GREGORY STEWART
General Counsel
PHILIP B. SKLOVER
Associate General Counsel
CAROLYN L. WHEELER
Assistant General Counsel
GEOFFREY L.J. CARTER
Attorney
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
Office of General Counsel
1801 L Street, NW.
Washington, D.C. 20507
(202) 663-4728
TABLE OF CONTENTS
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ii
STATEMENT OF INTEREST 1
STATEMENT OF THE CASE 2
A. Statement of Facts 2
B. The Panel Decision 5
ARGUMENT 8
THIS COURT SHOULD GRANT GILE'S PETITION FOR REHEARING, WITH
SUGGESTION FOR REHEARING EN BANC, ON THE ISSUE OF PUNITIVE DAMAGES . . . . . .
. . . . . 8
CONCLUSION 13
CERTIFICATE OF SERVICE
ADDENDUM
TABLE OF AUTHORITIES
CASES PAGE(S)
EEOC v. Indiana Bell Telephone Co., No. 99-1155, ___ F.3d ___, 2000 WL
681007 (7th Cir. May 26, 2000) . . . . . . . . . 13
EEOC v. W & O, Inc., Nos. 98-5515 & 98-5646, ___ F.3d ___,
2000 WL 689712 (11th Cir. May 30, 2000) . . . . . . . . . 12
EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241
(10th Cir. 1999) . . . . . . . . . . . . . . . . . . . . 13
Gile v. United Airlines, Inc., No. 99-2509, ___ F.3d ___,
2000 WL 656348 (7th Cir. May 22, 2000) . . . . . . . passim
Kolstad v. American Dental Association, 527 U.S. 526,
119 S. Ct. 2118 (1999) . . . . . . . . . . . . . . . . 1, 6, 8, 10,11
Lowery v. Circuit City Stores, Inc., 206 F.3d 431
(4th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . 12
STATUTES
42 U.S.C. § 1981a(a)(3) . . . . . . . . . . . . . . . . . . . 10
42 U.S.C. § 1981a(b)(1) . . . . . . . . . . . . . . . . . . . . 8
42 U.S.C. § 1981a(b)(3) . . . . . . . . . . . . . . . . . . . . 5
Americans with Disabilities Act ("ADA"), 42 U.S.C. §12101 et seq.,
. . . . . . . . . . . . . . . . . . . . . . . . . . 1
OTHER AUTHORITIES
Black's Law Dictionary (6th ed. 1990) . . . . . . . . . . . . 11
Restatement (Second) of Torts (1965) . . . . . . . . . . . . . 11
W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 34,
at 213 (5th ed. 1984) . . . . . . . . . . . . . . . 10
IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
No. 99-2509
CHERYL A. GILE,
Plaintiff-Appellee,
v.
UNITED AIRLINES, INC.,
Defendant-Appellant.
On Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division
Honorable Rebecca R. Pallmeyer, Judge
BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION AS AMICUS CURIAE IN SUPPORT OF THE
PLAINTIFF-APPELLEE'S PETITION FOR REHEARING
AND PETITION FOR REHEARING EN BANC
STATEMENT OF INTEREST
The Equal Employment Opportunity Commission ("Commission") is the
agency charged with the enforcement of Title I of the Americans With
Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and other federal
anti-discrimination statutes. In this case, a panel of this Court ruled,
by a 2 to 1 vote, that, notwithstanding the jury's decision to award
punitive damages to plaintiff-appellee Cheryl Gile, defendant-appellant
United Airlines was entitled to prevail as a matter of law based on the
Supreme Court's reasoning in Kolstad v. American Dental Association,
527 U.S. 526, 119 S. Ct. 2118 (1999).
The panel majority's opinion requires correction because it conflicts
with the Supreme Court's decision in Kolstad. Specifically, the panel
majority's ruling creates an improperly high standard of proof for
punitive damages that effectively requires a plaintiff to show that her
employer discriminated with the subjective understanding that its actions
might violate federal law. If followed, the panel majority's reasoning
could severely limit the punitive damages provisions enacted by Congress
in the Civil Rights Act of 1991 because the panel majority's decision
implicitly precludes plaintiffs from arguing that, notwithstanding
the employer's subjective beliefs, a trier of fact may find reckless
indifference where a reasonable employer in the defendant's position
would have perceived the risk that its actions violated federal law.
Because of the importance of this issue to the standard of proof
required for punitive damages under the ADA and other statutes, and
thus to the effective enforcement of those statutes, the Commission
offers its views to the Court.
STATEMENT OF THE CASE
A. Statement of Facts
In 1984, Gile began working for United as a data entry operator in
United's air freight department at O'Hare International Airport in
Chicago, Illinois. Gile v. United Airlines, Inc., No. 99-2509, ___
F.3d ___, 2000 WL 656348 at *1 (7th Cir. May 22, 2000). She initially
began working on the day shift, but changed to the night shift in 1989,
where she worked without incident for several years. Id.
In March 1992, Gile began feeling chronically depressed and suffered
from insomnia and constant anxiety. See id. Specifically, she "[s]lept
only a few hours a day, struggled to perform mundane household chores,
erupted into spontaneous outbursts of crying, fell asleep while
driving and felt perpetually fatigued." Id. Accordingly, in June
1992, Gile began "semi-weekly consultations about her psychological
condition with Betty Orlandino, a licensed clinical social worker
listed by United in its catalog of health care providers recommended
to employees." Id. Orlandino noted that Gile's anxiety over getting
sufficient sleep and the sheer exhaustion from insomnia exacerbated
Gile's psychological condition, and therefore instructed Gile to seek
a transfer to a daytime shift. See id. Following Orlandino's advice,
Gile informed her supervisor, James Kinzler, that she needed to alleviate
her depression and that she needed to move to a different shift than
the night shift. See id. Kinzler never spoke to Gile again about her
request for a transfer. See id.
On August 28, 1992, Gile had a mental breakdown while at work and
began crying uncontrollably. See id. Gile contacted Orlandino for
assistance, and after meeting with Gile on August 31, 1992, Orlandino
recommended that Gile be placed on medical leave and that Gile be placed
on anti-anxiety and anti-depressant medication. See id. Orlandino also
provided United with a note "stating that Gile was 'experiencing a
depressive reaction with anxiety state' and 'her present position at
United and the night shift are aggravating her condition.'" Id. at *2.
During her stint on medical leave, Gile completed transfer requests in an
effort to secure a different position with United. See id. Gile also
met with United Regional Medical Director Dr. Robert McGuffin. See id.
At their September 22, 1992 meeting, "Gile explained her symptoms and
told McGuffin that she was seeing Orlandino twice weekly for depression.
Despite Gile's explanation and the fact that McGuffin earlier had spoken
with Orlandino about Gile's condition and its connection to Gile's
assignment to the night shift, McGuffin told Gile that "'if [she] was
that unhappy, [then] why didn't [she] just resign and stay home." Id.
Gile responded that she wanted to work, and explained that she was
willing to transfer to any position available on the daytime shift,
even if the transfer was a demotion. See id.
After this initial meeting, both Gile and Orlandino renewed their
requests that Gile be allowed to transfer to a position on the daytime
shift as a reasonable accommodation. On September 29, 1992, Orlandino
sent a letter to Dr. McGuffin reiterating her request that Gile be
allowed to change shifts as an accommodation because her symptoms were
"directly related to the shift she has been assigned to."<1> Id. Gile,
meanwhile, saw Dr. McGuffin on November 2, 1992, and expressly stated
that though she was experiencing "'severe, severe depression,'" she
"would be happy to go back to work if he would 'please just help [her]
get a job that [she] would be working the day shift." Id. Dr. McGuffin
stated at trial that he did not reassign Gile to the day shift "because
he was concerned that other employees might expect or request a transfer
out of the night shift as well," and because he believed that a "'change
in work schedule more accurately addressed personal and life and family
issues rather than an illness.'" Ultimately, Dr. McGuffin denied Gile's
transfer request, instead releasing her to work on the night shift.
See id.
Upon learning of United's decision, Orlandino contacted Dr. McGuffin to
"insist that Gile's night shift assignment was a 'major factor' in her
condition." Id. at *3. Dr. McGuffin disagreed, responding that "'if
Gile didn't like it, she could quit.'" Id. United terminated Gile on
January 14, 1993. See id.
At all relevant times in this case, Dr. McGuffin and Gile's supervisors
knew and understood United's reasonable accommodation policy, which
requires United's officials to grant requests for accommodation when
feasible, and to "find alternative job opportunities for the employee"
when the requested accommodation is denied. Id. at *4 (quoting United's
reasonable accommodation policy).
B. The Panel Decision
After trial, a jury awarded Gile $200,000 in compensatory damages and
$500,000 in punitive damages. See id. The district court reduced
Gile's total award to $300,000 ($200,000 in compensatory damages and
$100,000 in punitive damages) to conform to the statutory caps on damages
set forth in 42 U.S.C. § 1981a(b)(3), and denied United's motions for
judgment as a matter of law and for new trial. Gile, 2000 WL 656348
at *4. United then appealed to this Court, contesting the district
court's decision to deny its motions for judgment as a matter of law
regarding compensatory damages and punitive damages, and the district
court's decision to deny its motion for a new trial based on the court's
denial of United's requested jury instruction on the consideration of
mitigating measures in assessing Gile's disability. See id.
The panel affirmed the district court's decision to deny United's motion
for judgment as a matter of law on compensatory damages. See id. at
*5-7. The panel also affirmed the district court's decision to deny
United's motion for a new trial due to the denial of its requested
jury instruction. See id. at *8. By a 2 to 1 vote, however, the panel
reversed the district court's decision to deny United's motion for
judgment as a matter of law on punitive damages, holding that United
was in fact entitled to prevail on that issue. See id. at *9.
The panel majority began by recognizing that, under the Supreme Court's
decision in Kolstad v. American Dental Association, 527 U.S. 526,
119 S. Ct. 2118, 2124 (1999), to receive an award of punitive damages
in connection with an ADA claim, the plaintiff must establish that
the defendant engaged in a discriminatory practice with "malice or
reckless indifference" to the individual's federally protected rights.
Gile, 2000 WL 656348 at *9. Elaborating, the panel majority observed
that "[p]unitive damages are proper when the employer discriminates
'in the face of a perceived risk that its actions will violate federal
law.'" Id. (quoting Kolstad, 119 S. Ct. at 2125).
Applying that standard to this case, the panel majority observed that
"[i]t is clear that McGuffin and Gile's floor supervisors knew of the
ADA and United's reasonable accommodation policy." Gile, 2000 WL 656348
at *9. According to the panel majority, however, United did not act with
malice or reckless indifference to Gile's ADA rights because "McGuffin in
good faith disagreed with Orlandino that a shift transfer would enable
Gile to work and believed that Gile's psychological condition was a
nonoccupational, personal problem which did not trigger any obligation
under the ADA on United's part." Id. As a result, "United's failure
to accommodate Gile's disability amounted to negligence because it
misunderstood Gile's difficulties, did not regard her condition as a
disability and neglected to pursue Gile in developing an alternative
accommodation." Id. Because, in the panel majority's view, "United
did not exhibit the requisite reckless state of mind regarding whether
its treatment of Gile violated the ADA," the panel majority reversed
the jury's award of punitive damages to Gile. Id.
In a separate opinion, Judge Diane Wood concurred with the panel
majority's conclusions on compensatory damages and the erroneous jury
instruction, but dissented on the issue of punitive damages. See id. at
*10. In Judge Wood's view, the jury was entitled to find that United
discriminated against Gile in the face of a perceived risk that its
actions would violate federal law. See id. As Judge Wood explained,
the jury was entitled to find that United engaged in reckless behavior
because Dr. McGuffin "unquestionably knew about United's ADA policy,"
and denied Gile her requested shift transfer "in the face of extensive
medical documentation to the contrary from a professional United itself
recommended." Id.
ARGUMENT
THIS COURT SHOULD GRANT GILE'S PETITION FOR REHEARING, WITH SUGGESTION
FOR REHEARING EN BANC, ON THE ISSUE OF PUNITIVE DAMAGES
As set forth above, the panel in this case reversed, by a 2 to 1 vote,
the jury's award of punitive damages to plaintiff Cheryl Gile. The panel
majority's decision on this issue must be corrected by the panel or by
the Court sitting en banc because the decision improperly indicates
that, to receive punitive damages, a plaintiff must show that her
employer discriminated while being subjectively aware that its actions
might violate federal law. As the discussion below will demonstrate,
the panel majority's flawed opinion on the issue of punitive damages
cannot be allowed to stand because it cannot be reconciled with the
well established standards of proof for punitive damages set forth
in the Civil Rights Act of 1991 and discussed in the Supreme Court's
decision in Kolstad, 119 S. Ct. at 2124-26.
Under the Civil Rights Act of 1991, "[a] complaining party may recover
punitive damages . . . against a respondent . . . if the complaining
party demonstrates that the respondent engaged in a discriminatory
practice with malice or reckless indifference to the federally protected
rights of an aggrieved individual." 42 U.S.C. § 1981a(b)(1). As the
Supreme Court explained in Kolstad, 119 S. Ct. at 2124, "[t]he terms
'malice' or 'reckless indifference' pertain to the employer's knowledge
that it may be acting in violation of federal law." Punitive damages,
therefore, are proper when the employer discriminates "in the face of a
perceived risk that its actions will violate federal law." Id. at 2125.
In its opinion, the panel majority recited the relevant language in
the Civil Rights Act of 1991 and in Kolstad stating the standard for
punitive damages. See Gile, 2000 WL 656348 at *9 (quoting the Civil
Rights Act of 1991 and Kolstad). The panel majority's analysis of the
jury's decision to award punitive damages to Gile, however, suggests
that the panel majority improperly limited its assessment of whether
United acted with malice or reckless indifference to the question of
whether United subjectively perceived that its actions might violate
the ADA. In its decision, the panel majority identified evidence that
clearly would permit a reasonable jury to find that United perceived,
or a reasonable employer in United's position would have perceived,
the risk that its conduct in connection with Gile's request for
accommodation violated the ADA. Indeed, the panel majority noted that:
(1) Dr. McGuffin was familiar with both the ADA and United's policy
on reasonable accommodation; (2) Dr. McGuffin, by his own admission at
trial, did not disagree with the diagnosis that Gile had depression and
anxiety; and (3) Dr. McGuffin repeatedly denied Gile's (and Orlandino's)
requests for accommodation and did not suggest any other reasonable
alternative despite his knowledge of Gile's diagnosed disability and
his responsibilities under the ADA. See Gile, 2000 WL 656348 at *2, 9.
Despite this objective evidence of reckless indifference, however, the
panel majority reversed the award of punitive damages, giving dispositive
weight to evidence indicating that United may have subjectively hoped
or believed that it was not acting in violation of the ADA. See Gile,
2000 WL 656348 at *9 (stating that Dr. McGuffin "in good faith" disagreed
with Orlandino's assessment that a shift transfer would enable Gile to
return to work, and stating that United's conduct was merely negligent
because it "misunderstood Gile's difficulties").<2>
The panel or the court sitting en banc should correct the panel
majority's decision on the issue of punitive damages because it is well
established that reckless indifference may be established under an
objective, reasonable person, standard. See W. Page Keeton, et al.,
Prosser and Keeton on the Law of Torts § 34, at 213 (5th ed. 1984)
(explaining that because reckless indifference "is almost never
admitted, and can be proved only by the conduct and circumstances,
an objective standard must of necessity in practice be applied").
See also Kolstad, 119 S. Ct. at 2124 (referring to this treatise for
guidance on the definition of "reckless" and the methods that may be
used to demonstrate an employer's state of mind). In fact, there are
at least two ways to establish that an employer acted with reckless
indifference to the risk that its actions would violate federal law:
(1) with evidence that the employer subjectively was aware of the risk;
and/or (2) with evidence that the employer had knowledge of facts
that would have placed a reasonable person on notice of the risk.
See Restatement (Second) of Torts § 500 cmt. f (1965) (explaining that
misconduct is reckless if the actor "realizes or, from facts which
he knows, should realize that there is a strong probability that harm
may result, even though he hopes or even expects that his conduct will
prove harmless"); id. cmt. g (explaining that an act is reckless if the
actor undertakes a "conscious course of action, either with knowledge
of the serious danger to others . . . or with knowledge of facts
which would disclose the danger to any reasonable man")<3>; Black's
Law Dictionary 1271 (6th ed. 1990) ("recklessness" is "[t]he state of
mind accompanying an act, which either pays no regard to its probably
or possibly injurious consequences, or which, though foreseeing such
consequences, persists in spite of such knowledge"). Under the second,
objective standard, an employer's subjective belief that it was acting
within the confines of the law does not automatically preclude an award
of punitive damages because, depending on the facts of a given case,
a jury may still decide to award punitive damages because a reasonable
employer in the defendant's position would have perceived the risk that
its actions might violate the law.<4>
Ultimately, the panel majority's reasoning on the issue of punitive
damages cannot stand because it is clear that Gile was entitled to rely
on an objective, reasonable person standard to establish that United was
recklessly indifferent to the risk that its actions violated federal law.
Several courts have sustained punitive damages awards based on similar
objective evidence. See, e.g., EEOC v. W & O, Inc., Nos. 98-5515 &
98-5646, ___ F.3d ___, 2000 WL 689712 at *6 (11th Cir. May 30, 2000)
(explaining that, notwithstanding the employer's subjective assertion
that it acted out of desire to benefit the plaintiffs, jury properly
found malice or reckless indifference where the employer maintained a
policy that discriminated against pregnant women despite having reason
to know that the policy might violate the Pregnancy Discrimination Act);
Lowery v. Circuit City Stores, Inc., 206 F.3d 431, 443, 446-47 (4th
Cir. 2000) (affirming jury's finding of reckless indifference, based on
evidence that employer was familiar with the federal anti-discrimination
laws and yet failed to promote the plaintiffs because of their race);
EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1246 (10th Cir. 1999)
(affirming jury's finding of reckless indifference, based on evidence
that the employer was aware of the plaintiff's disability, was familiar
with the ADA and its provisions requiring reasonable accommodation,
and yet failed to provide the plaintiff with reasonable accommodation
when asked to do so). See also EEOC v. Indiana Bell Telephone Co.,
No. 99-1155, ___ F.3d ___, 2000 WL 681007 at *6 (7th Cir. May 26, 2000)
(indicating that evidence that the employer was on notice of sexual
harassment and failed to act provided a sufficient basis for a reasonable
jury to find malice or reckless indifference and to award punitive
damages). Because the panel majority's decision implicitly rejects
the widely accepted objective standard of proof for punitive damages,
it should be corrected by the panel or by the Court sitting en banc.
CONCLUSION
For the foregoing reasons, the Commission respectfully requests that
this Court grant Gile's petition for rehearing, with suggestion for
rehearing en banc so that this Court may resolve the conflict the panel
opinion creates with the precedent of the Supreme Court and other courts
of appeals on the standard of proof for punitive damages.
Respectfully submitted,
C. GREGORY STEWART
General Counsel
PHILIP B. SKLOVER
Associate General Counsel
CAROLYN L. WHEELER
Assistant General Counsel
GEOFFREY L.J. CARTER
Attorney
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
Office of General Counsel
1801 L Street, NW.
Washington, D.C. 20507
June 2, 2000 (202) 663-4728
CERTIFICATE OF SERVICE
I, Geoffrey L. Carter, hereby certify that on this 2nd day of
June, 2000, two copies of the attached brief, and one copy of the
attached brief on digital media, were sent by first class mail,
postage prepaid, to each of the following counsel of record:
Laurie M. Burgess, Esq.
Katz, Friedman, Schur & Eagle
77 W. Washington St., 20th Fl.
Chicago, IL 60602-2801
Helen E. Witt, Esq.
Elli Leibenstein, Esq.
Jill C. Anderson, Esq.
Kirkland & Ellis
200 E. Randolph Dr.
Chicago, IL 60601
GEOFFREY L.J. CARTER
Attorney
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
Office of General Counsel
1801 L Street, NW
Washington, D.C. 20507
June 2, 2000 (202) 663-4728
1 Dr. McGuffin testfied that "he did not disagree with the diagnosis
of depression and anxiety or 'take issue' with Orlandino's assessment."
Id. at *2.
2 Although the damages provision of the Civil Rights Act of 1991 provides
employers with a good faith defense to compensatory and punitive damages
in cases where the employer can demonstrate good faith efforts to provide
accommodation (see 42 U.S.C. § 1981a(a)(3)), nothing in the statute
suggests that an employer can dispel objective evidence of its reckless
indifference in refusing to consider a request for accommodation merely by
presenting evidence that it subjectively believed the individual seeking
accommodation was not disabled under the ADA. This Court should reject
the panel majority's endorsement of this "subjective belief" defense
because if accepted, employers would be able to avoid punitive damages in
virtually all reasonable accommodation cases merely by asserting that,
irrespective of the objective evidence establishing the individual's
disability, the employer subjectively believed the individual was not
covered by the ADA.
3 In Kolstad, 119 S. Ct. at 2128, the Supreme Court referred to the
Restatement (Second) of Torts and the Restatement (Second) of Agency
for guidance on the issue of punitive damages. The Restatement (Second)
of Torts § 908, comment b, refers to § 500 of that same treatise for a
discussion of how the reckless indifference to the rights of others may
provide the necessary state of mind for punitive damages.
4 In this case, the panel unanimously concluded that there was sufficient
evidence to support the jury's verdict that Gile was a qualified
individual with a disability, and therefore was entitled to reasonable
accommodation. Because a reasonable jury of lay people concluded that
Gile had a disability, United should not be permitted to shield itself
from punitive damages as a matter of law based only on evidence that
the doctor charged with handling ADA accommodation requests formed a
"good faith" opinion that Gile only had a "personal problem" that "did
not trigger any obligation under the ADA." Gile, 2000 WL 656348 at *9.
Indeed, the jury's finding on liability underscores the fact that a
reasonable person in United's position would have recognized that Gile
was entitled to reasonable accommodation, and also would have recognized
that there was a strong possibility that a decision to deny her request
for such accommodation would violate the ADA.
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