USCA1 Opinion
August 21, 1995
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
____________________
No. 95-1168
DONALD HOGAN,
Plaintiff, Appellee,
v.
BANGOR AND AROOSTOOK RAILROAD COMPANY,
Defendant, Appellant.
____________________
No. 95-1169
DONALD HOGAN,
Plaintiff, Appellant,
v.
BANGOR AND AROOSTOOK RAILROAD COMPANY,
Defendant, Appellee.
____________________
ERRATA SHEET
The opinion of this court issued on August 18, 1995 is amended as
follows:
On the cover sheet, substitute "On Appeals" for "On Appeal".
On the cover sheet, substitute "for Bangor and Aroostook Railroad
Company" for "for appellant".
On the cover sheet, substitute "for Donald Hogan" for "for
appellee".
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1168
DONALD HOGAN,
Plaintiff, Appellee,
v.
BANGOR AND AROOSTOOK RAILROAD COMPANY,
Defendant, Appellant.
____________________
No. 95-1169
DONALD HOGAN,
Plaintiff, Appellant,
v.
BANGOR AND AROOSTOOK RAILROAD COMPANY,
Defendant, Appellee.
____________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Eugene W. Beaulieu, U.S. Magistrate Judge] _____________________
____________________
Before
Selya, Cyr, and Lynch, Circuit Judges. ______________
____________________
James E. Howard, with whom M. Katherine Willard and Phoebe S. ________________ _____________________ __________
Gallagher were on brief, for appellant. _________
William J. Kelleher for appellee. ___________________
____________________
August 18, 1995
____________________
LYNCH, Circuit Judge. An employer's refusal to let LYNCH, Circuit Judge. _____________
an employee return to work out of a difference of medical
views as to whether the employee was fit gave rise to this
discrimination action brought under the Americans with
Disabilities Act ("ADA"), 42 U.S.C. 12101 et seq., and the __ ____
Maine Human Rights Act ("MHRA"), Me. Rev. Stat. Ann. tit. 5,
4561 et seq. (West 1989). A jury verdict in favor of the __ ____
plaintiff Donald Hogan of $400,000, reduced by the district
court to $200,000, gives rise to a case of first impression
in this Circuit on the meaning of the cap on ADA damages
imposed by 42 U.S.C. 1981a(b)(3). Because the language of
the statute is clear, the reduction of the jury award of
damages to $200,000 is affirmed. The challenges of the
defendant Bangor and Aroostook Railroad ("BAR") to the
sufficiency of the evidence to support the $200,000 award and
to the additional back pay award of $70,684.29 are rejected,
as is Hogan's challenge to the denial of his motion for
prejudgment interest.
Hogan, a trackman for BAR since 1970, suffered a
collapsed lung while at work in February 1992. After surgery
to remove a lobe of his lung, Hogan was told on May 20, 1992
by Dr. Cabot that he was fit to return to work. Dr. Sagall,
BAR's Chief Medical Officer and a family practitioner,
examined Hogan and, based on what he professed to be abnormal
pulmonary function tests, concluded Hogan was not able to
return to his physically demanding job. Dr. Sagall believed
that Hogan suffered from bullous disease and emphysema, and
that this increased Hogan's risk of lung collapse.
Despite mounting medical evidence to the contrary,
Dr. Sagall clung to his belief for more than two and a half
years. Hogan's physician, Dr. Cabot, based on later
examination again repeated that Hogan was fit. Dr. Sagall,
feeling Dr. Cabot did not understand how strenuous Hogan's
job was, again told Hogan he could not return to work. Dr.
Sagall, however, failed to discuss Hogan with Dr. Cabot,
failed to ascertain if Dr. Cabot did misunderstand the nature
of the job, and failed to have x-rays done which would have
revealed whether Hogan in fact suffered from emphysema and
bullous disease. Indeed, Dr. Sagall did not request x-rays
until January 1993, after Hogan had brought suit, when
directed to do so by the Railway Retirement Board. In
addition, CAT-scan results available to Dr. Sagall in March
1992 would have disclosed, if reviewed, that Hogan did not
suffer from emphysema.
By January 1993 BAR had been given an opinion from
an acknowledged pulmonary specialist, Dr. Oldenburg, that
Hogan could return to work. This opinion fared no better in
swaying BAR than did Dr. Cabot's opinion. Dr. Sagall again
felt no need to contact Dr. Oldenburg and discuss Hogan.
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In October 1993, BAR requested that Hogan undergo a
Functional Capacity Test prepared specifically for him.
There was no guarantee that if Hogan passed the test he would
be allowed to return to work. Hogan refused to take the
test.
In November 1994, after trial had started and after
examinations by both Dr. Oldenburg and Dr. Sagall, BAR
reinstated Hogan to his job as trackman.
In the period that Hogan was kept out of work
despite his doctors' opinions that he was fit, Hogan and his
family were forced to live on a fraction of his former income
as family breadwinner. Dr. Sagall's repeated statements to
him that he was disabled and the disability was probably
permanent exacerbated Hogan's depressed state.
The jury found in Hogan's favor under the ADA and
awarded him $200,000 each in punitive and in compensatory
damages. The district court then reduced Hogan's award to
$200,000 ($100,000 compensatory and $100,000 punitive)
pursuant to the statutory cap imposed by 42 U.S.C.
1981a(b)(3). In addition, Hogan was awarded $70,684.29 in
back pay. As an alternative recovery under the MHRA, the
district court awarded Hogan the same back pay award of
$70,684.29 plus $5,000 in civil penal damages.
Hoping to retain the $400,000 award, Hogan argues,
based solely on an improbable reading of the statute, that 42
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U.S.C. 1981a(b)(3) imposes a cap of $200,000 on each type ____
of damage award, and not on the sum of the two. The language ___
of 42 U.S.C. 1981a(b)(3) provides:
The sum of the amount of compensatory damages
awarded under this section for future pecuniary
losses, emotional pain, suffering, inconvenience,
mental anguish, loss of enjoyment of life, and
other nonpecuniary losses, and the amount of
punitive damages awarded under this section, shall
not exceed . . . $200,000.
The district court correctly read the provision as
"[t]he sum of the amount of compensatory damages . . . and
the amount of punitive damages . . . shall not exceed . . .
$200,000." The only other court to have considered the issue
thus far has reached the same conclusion. See U.S. Equal ___ ___________
Employment Opportunity Commission v. AIC Security _____________________________________ _______________
Investigations, Ltd., 823 F. Supp. 571, 576 (N.D. Ill. 1993), ____________________
rev'd in part on other grounds, 55 F.3d 1276 (7th Cir. 1995). ______________________________
The statute is clear on its face that the sum of
compensatory damages (including its various components) and
punitive damages shall not exceed $200,000. "The task of
statutory interpretation begins with the language of the
statute, and statutory language must be accorded its ordinary
meaning." Gately v. Commonwealth of Massachusetts, 2 F.3d ______ _____________________________
1221, 1228 (1st Cir. 1993), cert. denied, 114 S. Ct. 1832 ____________
(1994). "[W]hen a statute speaks with clarity to an issue
judicial inquiry into the statute's meaning, in all but the
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most extraordinary circumstance, is finished." Estate of _________
Cowart v. Nicklos Drilling Co., 112 S. Ct. 2589, 2594 (1992). ______ ____________________
The reduction of the jury award from $200,000 to
$100,000 on each type of damage award was done by the
district court simply to accommodate the cap. The original
jury award of $200,000 for compensatory damages alone would
also satisfy the cap. Exercising our authority under 28
U.S.C. 2106, see United States v. Garafano, No. 95-1127, ___ _____________ ________
slip op. at 8 (1st Cir. Aug. 7, 1995), we reinstate the
jury's award of $200,000 in compensatory damages, for which
there is sufficient evidence as described below, and vacate
the district court's award of $100,000 in punitive damages,
thus obviating the need to reach the question of punitive
damages.
BAR argues that the jury's award of compensatory
damages was excessive and should be reduced.1 An award of
compensatory damages is excessive if it exceeds a rational
appraisal of the damages actually incurred. See Linn v. ___ ____
Andover Newton Theological School, Inc., 874 F.2d 1, 6 (1st ________________________________________
Cir. 1989). "Generousness of a jury's award does not alone
justify an appellate court in setting it aside." Id. ___
____________________
1. BAR argues that the reduced jury award of $100,000 in
compensatory damages was excessive. Since we have reinstated
the full jury award of $200,000 on compensatory damages, we
treat BAR's arguments on the $100,000 of compensatory damages
as applying to the full amount.
-6- 6
(quoting Kolb v. Goldring, Inc., 694 F.2d 869, 871 (1st Cir. ____ ______________
1982)).
BAR argues Hogan did not prove emotional distress
sufficient to warrant the damages award. The jury, however,
awarded compensatory damages not only for emotional distress,
but also for inconvenience, mental anguish, and loss of
enjoyment of life. Until his reinstatement in October 1994,
Hogan was repeatedly and incorrectly kept from a job he had
held for twenty-two years. During the almost two and a half
years he was kept out of work, Hogan, who was married and had
two young children, saw his annual income of $28,000 and
benefits plummet to $13,000 with no benefits. His wife, who
had previously cared for their children, went to work in a
shoe factory in order for the family to have medical
insurance. As the district court noted, they were in "a
difficult financial situation." The company doctor had told
Hogan he was "disabled" and that it was highly unlikely he
would ever be able to return to physical labor, the job he
had had most of his adult life. Hogan, very upset as a
result, became depressed, withdrawn, and gave up his usual
activities. His pulmonary specialist described him as "quite
depressed." The evidence was adequate to support the award.
See Bolden v. Southeastern Pennsylvania Transportation ___ ______ ___________________________________________
Authority, 21 F.3d 29, 33 (3d Cir. 1994). _________
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BAR also argues that Hogan's refusal to take a
Functional Capacity Evaluation Test ("FCE") specially
designed for him, in September 1993, constituted a failure to
mitigate back pay damages, and that the district court erred
in not so ruling. An employee's rejection of an employer's
unconditional job offer does end the accrual of the
employer's potential back pay liability, absent special
circumstances. Ford Motor Co. v. Equal Employment ________________ _________________
Opportunity Commission, 458 U.S. 219, 241 (1982); Morris v. ______________________ ______
American National Can Corporation, 952 F.2d 200, 202 (8th ___________________________________
Cir. 1991). If Hogan had taken and passed the FCE, he still
had to proceed to further tests and if he cleared those he
was required to obtain a clearance from Dr. Sagall. BAR's
argument fails because it was by no means clear that Hogan
was to be reinstated to his job upon completion of the FCE.
BAR did not meet its burden of showing it made an
unconditional job offer, much less its burden of showing that
the district court (which believed BAR's suggestion that
Hogan undertake the testing regime was a litigation tactic,
and untimely to boot) erred. In the absence of a concrete
offer of reinstatement, the period of back pay accrual does
not end.
Hogan finally argues that the district court abused
its discretion in not awarding him prejudgment interest on
his back pay award under federal law. Whether prejudgment
-8- 8
interest is needed to make a plaintiff whole is within the
discretion of the district court. See Conway v. Electro ___ ______ _______
Switch Corp., 825 F.2d 593, 602 (1st Cir. 1987). The _____________
district court did not abuse its discretion in not awarding
Hogan prejudgment interest here where the award of damages is
almost three times the size of the back pay award.
We do not reach Hogan's claim of prejudgment
interest under the MHRA because Hogan admits he failed to
seek such interest from the district court, and he may not do
so initially on appeal. See, e.g., CMM Cable Rep., Inc. v. ___ ____ _____________________
Ocean Coast Properties. Inc., 48 F.3d 618, 622 (1st Cir. ______________________________
1995) ("A party who neglects to ask the trial court for
relief that it might reasonably have thought would be
available is not entitled to importune the court of appeals
to grant that relief.").
We vacate the district court's award of $100,000 in
punitive damages, reinstate the jury's award of $200,000 in
compensatory damages, and affirm the judgment on all other
issues.
No costs to either party.
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