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Every now and then, a decision comes along where attorneys on one side of the bar or the other collectively scratch their heads and say: “Why didn’t I think of that?” Such is the case for the defense bar in the recent decision of the 7th U.S. Circuit Court of Appeals in Kramer v. Banc of America Securities, LLC, No. 02-3662, 2004 U.S. App. LEXIS 760 (7th Cir. Jan. 20, 2004), where the court held that compensatory and punitive damages are not available for retaliation claims brought under the Americans with Disabilities Act and, therefore, a plaintiff bringing that particular claim is not entitled to a jury trial. Although the decision is both surprising in its outcome and sweeping in its scope, the underlying facts are routine. Colleen Kramer worked in BOA’s Chicago office from October 1995 until October 1999. As a managing director, she was responsible for supervising a team of employees who structured loans for middle-market companies. In October 1998, Kramer began reporting to a new supervisor who was impressed with her team’s work, but critical of Kramer herself. Seven months later, Kramer was replaced as team leader by her new supervisor, although she retained her salary and title. She was also given an evaluation sharply critical of her performance and told that improvement was expected within 90 days. Kramer called her lawyer, who wrote to BOA demanding Kramer’s reinstatement as team leader and revealing, for the first time, that Kramer suffered from multiple sclerosis. Undeterred by the attorney’s demand or notice of Kramer’s condition, BOA met with her on Sept. 1, 1999 and gave her 30 days to improve her performance or face termination. Shortly thereafter, she filed a charge of disability discrimination and retaliation with the EEOC. She advised BOA of her filings a few days later. Her attorney also requested an immediate right to sue letter, which was granted. Two weeks later, Kramer was terminated. She filed suit based on her demotion the following week. A few months later, Kramer filed a second charge of discrimination with the EEOC alleging retaliatory discharge. She subsequently amended her complaint in May 2001. All of the pleadings, at that point, had included a demand for jury trial from Kramer and BOA. Summary judgment was granted to BOA on Kramer’s disability claims, but denied on the claim of retaliatory discharge. Just 10 days before trial, BOA filed a motion to exclude compensatory and punitive damages and strike plaintiff’s jury demand, raising, for the first time, an argument that compensatory and punitive damages are not recoverable on a claim of retaliation under the ADA and, therefore, Kramer had no statutory right to a jury trial. The district court granted this motion and subsequently returned a verdict in favor of BOA after a six-day bench trial. Kramer appealed. STATUTORY ANALYSIS The 7th Circuit engaged in intricate statutory construction of the ADA and the 1991 Civil Rights Act in considering Kramer’s appeal. Those of us who have been practicing for a while will recall that compensatory and punitive damages, along with the right to a jury trial, became available in civil rights actions following passage of the 1991 Civil Rights Act. With respect to ADA claims, the Act states that compensatory and punitive damages are available for intentional violations of “Section 102 of the [ADA] or [an act] committed in violation of Section 102(b)(5) of the [ADA]�.” Section 102 of the ADA (42 U.S.C. �12112) is the general prohibition against disability discrimination affecting the terms and condition of employment. Section 102(b)(5) (42 U.S.C. �12112(5)) requires reasonable accommodations and prohibits discrimination in the hiring process. The prohibition against retaliation, on the other hand, is contained in 42 U.S.C. �12203. The court noted 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 [ADA] retaliation claim. [B]ecause the plain language of [the 1991 CRA] limits its application to specific claims, it is inappropriate the expand the scope of the statute �.” Kramer was, therefore, limited to equitable damages on her claim of retaliation under the ADA. That is, “a court may issue an injunction, reinstate the plaintiff employee, or to back pay, or award any other equitable relief as the court deems appropriate.” 42 U.S.C. �2000e-5(g)(1). The final piece in the puzzle is the well-settled law that there is no right to a jury where the only remedies sought (or available) are equitable. The court also considered, and rejected, Kramer’s argument that BOA had consented to a jury trial in its answer to the complaint and amended complaint and could not withdraw its consent without Kramer’s permission. The court found that this would have been the case had Kramer been entitled to a jury trial as a matter of right. However, once the district court found there to be no right to a jury trial, BOA could then withdraw its consent. It should be noted that, while Kramer is the first appellate court decision on whether ADA retaliation plaintiffs are entitled to compensatory and punitive damages, this issue has been raised a number of times before district courts. These courts have split on the issue although, as noted in Kramer, only a few have engaged in a similarly detailed statutory analysis. ACT IMMEDIATELY The Kramer decision should have an immediate, practical effect on existing and future ADA-retaliation claims. That is, defendants facing such a claim can be expected to immediately file motions similar to those of BOA across the nation. Like ripples in a pond, we can expect first district courts, and then appellate courts to address Kramer and its ramifications in the coming year. Ultimately, if Congress does not enact legislation to fill this “damages gap” this issue will likely be for the Supreme Court in a few years. Sidney R. Steinberg is a shareholder in the business law and litigation department of Post & Schell, (www.postschell.com). He concentrates his national litigation and consulting practice in the field of employment and employee relations law and may be reached at [email protected].

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