United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 1, 2007
Charles R. Fulbruge III
No. 05-30712 Clerk
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff - Appellee,
versus
E.I. DU PONT DE NEMOURS & CO, doing business as
DuPont Specialty Chemicals,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
No. 2:03-CV-1605
Before JONES, Chief Judge, and REAVLEY and PRADO, Circuit Judges.
EDITH H. JONES, Chief Judge:
E.I. DuPont de Nemours and Company (“DuPont”) appeals the
partial grant of summary judgment to the EEOC and its refusal to
alter the judgment following a jury verdict awarding Laura Barrios
backpay, frontpay, and punitive damages for violations of the
Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101
et seq. DuPont argues that Barrios was not disabled under the ADA,
that it did not “regard her” as disabled, that she could not
perform an essential function of her job, and that the awards of
punitive damages and front- and backpay were inappropriate.
Finding only the frontpay award to be infirm, we AFFIRM in part and
REVERSE in part.
I. BACKGROUND
Laura Barrios began working in 1981 as a lab operator in
DuPont’s LaPlace, Louisiana, chemical plant. In 1986, she was
diagnosed with a number of medical conditions that made it
increasingly difficult for her to walk and for which she received
continuing medical treatment.
Barrios’s position required her to obtain annual physical
examinations by DuPont plant physicians. In 1996, the company
physicians restricted Barrios from, inter alia, standing for more
than ten minutes, walking more than one hundred feet without
resting, working in a stooped position, or working more than eight
hours. A year later, DuPont transferred her to the position of lab
clerk, a sedentary job that involved copying and filing.
DuPont’s examinations culminated in a 1999 functional
capacity evaluation (“FCE”) because of concerns about Barrios’s
ability to safely walk at the plant. The FCE was intended to
evaluate Barrios’s ability to perform the basic functions of her
job and to meet certain qualification standards, including the
ability to evacuate in the event of an emergency. Because of the
hazardous nature of the chemical manufacturing process at the
plant, DuPont was concerned about Barrios’s ability to evacuate
safely. DuPont contends that the ability to evacuate during an
emergency is required of all employees, and DuPont routinely
conducts emergency response drills.
2
After the FCE confirmed Barrios’s walking impairment,
DuPont physicians concluded that she should be medically restricted
from walking anywhere at the plant. DuPont believed this
restriction left her unable to evacuate in event of an emergency.
The company placed Barrios on temporary disability for six months
and total and permanent disability thereafter. Barrios’s attempt
to get her job back was rebuffed by Dupont, even though she
demonstrated in 2003 that she could walk an evacuation route
without assistance.
The EEOC filed suit against DuPont in June 2003, alleging
that DuPont violated the ADA by forcing Barrios to undergo the FCE
and by discharging her. DuPont responded that Barrios was
terminated because the FCE showed she could not safely evacuate the
plant on her own during an emergency. After both parties filed
cross-motions for summary judgment, the district court granted the
EEOC’s motion in part and denied DuPont’s motion. The court found
that DuPont regarded Barrios as disabled under the ADA, but it
found other material issues of fact.
The parties proceeded to trial, and a jury found that
Barrios was discharged in violation of the ADA and awarded her
$91,000 in backpay, $200,000 in frontpay, and $1,000,000 in
punitive damages, which the district court reduced to $300,000.1
1
See 42 U.S.C. § 1981a(b)(3)(D).
3
The court denied DuPont’s post-judgment motions. DuPont now
appeals.
II. DISCUSSION
DuPont argues that the district court erred in granting
partial summary judgment to the EEOC and in denying its motions for
judgment as a matter of law, new trial, and to amend or alter the
judgment because Barrios was not disabled or “regarded as” disabled
under the ADA; the awards of back- and frontpay are improper; and
the punitive damages award was unsupported. We address each issue
in turn.
A. Disability
DuPont appeals both the district court’s grant of partial
summary judgment to the EEOC on the issue whether DuPont regarded
Barrios as substantially limited in the major life activity of
walking and the court’s failure to determine as a matter of law
that Barrios was not disabled. Because the EEOC does not defend
the jury’s finding that Barrios was actually disabled for ADA
purposes, this appellate review must consider whether to sustain
the judgment solely on the basis that DuPont regarded Barrios as
disabled.
This court reviews de novo the district court’s grant of
summary judgment, utilizing the same criteria as the district
court. Cutrera v. Bd. of Supervisors of La. State Univ., 429 F.3d
4
108, 110 (5th Cir. 2005). DuPont will prevail if the evidence
demonstrated a genuine issue of material fact.
The ADA’s definition of “disability” includes individuals
who are “regarded as having such an impairment [that substantially
limits one or more of the major life activities].” 42 U.S.C.
§ 12102(2)(C); see also Rodriguez v. ConAgra Grocery Prods. Co.,
436 F.3d 468, 475 (5th Cir. 2006). A plaintiff is “regarded as”
being disabled if he “(1) has an impairment that is not
substantially limiting but which the employer perceives as
substantially limiting, (2) has an impairment that is substantially
limiting only because of the attitudes of others, or (3) has no
impairment but is perceived by the employer as having a
substantially limiting impairment.” Waldrip v. Gen. Elec. Co.,
325 F.3d 652, 657 (5th Cir. 2003) (citing Gowesky v. Singing River
Hosp. Sys., 321 F.3d 503, 508 (5th Cir. 2003)); see also Sutton v.
United Air Lines, Inc., 527 U.S. 471, 489, 119 S. Ct. 2139, 2149-50
(1999).
In holding that DuPont regarded Barrios as disabled, the
district court relied upon the broad restrictions placed on her by
DuPont physicians, the total and permanent disability benefits
provided to her with DuPont’s assistance, and DuPont’s pleadings
and discovery responses. DuPont admitted in its discovery
responses that Barrios was “incapable of walking” and “permanently
disabled from walking.” DuPont plant physicians placed
restrictions on her walking anywhere at the plant site, including
5
on level and paved surfaces, because they considered her
“substantially impaired in walking” and because she “could not
dependably be counted on to walk safely.” The district court cited
a large quantity of evidence consistent with its conclusion.
In response, DuPont argues that, rather than having
regarded Barrios as entirely disabled from the major life activity
of walking, it regarded her as having a medical restriction that
prevented her from walking at the plant. Two of this court’s
decisions, Ray v. Glidden Co., 85 F.3d 227 (5th Cir. 1996), and
Pryor v. Trane Co., 138 F.3d 1024 (5th Cir. 1998), are
representative of a long line of cases holding that an employer may
regard an employee as impaired or restricted from one position or
a narrow range of jobs without regarding him as “disabled.”2 Ray
held that restrictions on heavy lifting did not establish a record
of disability or a “regarded as” disability because the inability
to perform heavy lifting did not render the employee “substantially
limited in the major activities of lifting or working.” 85 F.3d at
229. Similarly, in Pryor, the employee could not be regarded as
disabled because her work restrictions were limited only to a
particular job and not an entire class of jobs. 138 F.3d at 1028.
DuPont’s reliance upon Ray and Pryor is misplaced. The
evidence demonstrates that DuPont did not regard Barrios as
2
See, e.g., Blanks v. Sw. Bell Commc’ns, Inc., 310 F.3d 398, 402 (5th
Cir. 2002); Talk v. Delta Airlines, Inc., 165 F.3d 1021, 1025 (5th Cir. 1999)
(per curiam); Deas v. River West, L.P., 152 F.3d 471, 480-81 (5th Cir. 1998);
Bridges v. City of Bossier, 92 F.3d 329, 334-36 (5th Cir. 1996).
6
restricted from a narrow range of jobs; rather, DuPont regarded
Barrios as restricted from all jobs at the plant, because every
employment position requires walking on the plant site. Moreover,
DuPont’s perception of Barrios’s walking impairment was not limited
to the plant — Dupont physicians believed her impairment extended
to “home, at work, wherever.” If company experts believed Barrios
could not walk safely even in her own work area, which consisted of
level, flat surfaces, then DuPont must also have believed she could
not safely walk anywhere. See Rodriguez, 436 F.3d at 477. DuPont
was unable to offer evidence that created a genuine issue of
material fact that its experts’ perceptions of the work
restrictions might have been limited to Barrios’s ability to walk
in her particular position as a lab clerk or only at the DuPont
plant.
Therefore, for ADA purposes, DuPont regarded Barrios as
substantially limited in the major life activity of walking. See
29 C.F.R § 1630.2(j)(1)(i) (stating that “substantially limits”
means “[u]nable to perform a major life activity that the average
person in the general population can perform”); Talk v. Delta
Airlines, Inc., 165 F.3d 1021, 1024-25 (5th Cir. 1999) (per curiam)
(noting that walking is a major life activity); see also EEOC v.
Sears, Roebuck & Co., 417 F.3d 789, 802 (7th Cir. 2005) (holding
that a “severe difficulty in walking the equivalent of one city
block was a substantial limitation compared to the walking most
7
people do daily”). The district court properly granted summary
judgment that Barrios was “regarded as” disabled.
B. Sufficiency of Evidence
DuPont next contends that ADA liability cannot attach as
a matter of law because Barrios was not qualified for the position
of lab clerk, she could not perform the essential function of
evacuation, and she constituted a direct safety threat to herself
and others. The jury implicitly found otherwise.
DuPont cannot prevail in seeking judgment as a matter of
law “unless there is no legally sufficient evidentiary basis for a
reasonable jury[’s] verdict.” Arsement v. Spinnaker Exploration
Co., 400 F.3d 238, 248-49 (5th Cir. 2005) (quoting FED. R. CIV. P.
50(a)(1)).3
The ADA states that a qualified individual with a
disability is one who “with or without reasonable accommodation,
can perform the essential functions of the employment position that
such individual holds or desires.” Rodriguez, 436 F.3d at 474
(emphasis added) (quoting 42 U.S.C. § 12111(8)). Essential
functions are the fundamental duties of the job at issue and do not
include the job’s “marginal functions.” Kapche v. City of San
Antonio, 176 F.3d 840, 843 (5th Cir. 1999) (citing 29 C.F.R.
3
Because DuPont’s briefs argue only for reversal of the judgment, the
company has failed sufficiently to brief and thus waived any claim to a new
trial. Another point of confusion is that DuPont argues that the jury was
“clearly wrong” in its verdict. Clear error is not the standard for judgment as
a matter of law, but we assume that DuPont’s argument is meant to be internally
consistent.
8
§ 1630.2(n)(1)). When considering whether a function is essential,
a court may hear a variety of evidence, including “(1) the
employer’s judgment as to which functions are essential,
(2) written job descriptions prepared before advertising or
interviewing applicants for the job, (3) the amount of time spent
on the job performing the function, and (4) the work experience of
both past and current employees in the job.” Id. (citing 29 C.F.R.
§ 1630.2(n)(3)(i)-(vii)). Appellate review of the jury’s determi-
nation of the essential functions of Barrios’s job is highly
deferential. See Barber v. Nabors Drilling U.S.A., Inc., 130 F.3d
702, 707 (5th Cir. 1997).
DuPont asserted that Barrios was incapable of evacuating
from the plant in an emergency and that evacuation is an essential
function of all workers at a chemical refinery. We do not doubt
that safety measures are extremely important in such workplaces.
Nevertheless, Barrios and the EEOC offered contradictory evidence
on DuPont’s precise points, and the jury was entitled to decide
whether to credit Barrios or DuPont. We will not disturb its
choice.
DuPont also asserts as an affirmative defense that
Barrios posed a direct threat to herself and other employees
because she could not safely evacuate. See 42 U.S.C. § 12113(a)-
(b). The ADA does not protect an employee who poses a direct
threat to the health and safety of herself or others in the
workplace. Robertson v. Neuromedical Ctr., 161 F.3d 292, 296 (5th
9
Cir. 1998) (per curiam). A direct threat is a “significant risk to
the health or safety of others that cannot be eliminated by
reasonable accommodation.” 42 U.S.C. § 12111(3). The employer
must make an “individualized assessment of the individual’s present
ability to safely perform the essential function of the job.”
Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 86, 122 S. Ct. 2045,
2053 (2002) (quoting 29 C.F.R. § 1630.2(r)); see also Rodriguez,
436 F.3d at 484; Kapche, 304 F.3d at 498.
Here, too, there was sufficient evidence for a reasonable
jury to conclude that Barrios was not a direct threat to herself or
her co-workers. Despite her medical restriction from walking,
Barrios safely ambulated the evacuation route without assistance in
2003, and testimony at trial supported that she could safely
evacuate without threatening the safety of others. See Rizzo v.
Children’s World Learning Ctrs., Inc., 213 F.3d 209, 213 (5th Cir.
2000) (en banc) (driver of child care van with hearing impairment
not a direct threat); cf. Gonzales v. City of New Braunfels,
176 F.3d 834, 838 (5th Cir. 1999) (police officer driving a cruiser
“with insulin-dependent diabetes poses a direct threat to the
health and safety of others as a matter of law”). The district
court did not err in denying DuPont’s motion for judgment as a
matter of law.
C. Back- and Frontpay Damages
10
The jury awarded $91,000 backpay from the date of
Barrios’s separation, July 1999, to the date of judgment in January
2005, and the court awarded frontpay of $200,000, premised on
Barrios’s ability to work until she became sixty-five and on the
infeasibility of reinstatement at DuPont. DuPont challenges both
awards.
The jury’s determination of the backpay period in this
case was not insupportable. See Brunnemann v. Terra Int’l, Inc.,
975 F.2d 175, 178 n.5 (5th Cir. 1992) (“the determination of back
pay period is a factual matter to be set aside only when clearly
erroneous” (citing Matthews v. A-1, Inc., 748 F.2d 975, 978 (5th
Cir. 1984))). Although Dr. Montegut, Barrios’s physician,
testified that Barrios was medically unable to work after June
2001, the jury could have relied upon testimony that Barrios had a
high pain threshold and could have worked after that date. The
jury was in a better position than this court to weigh the evidence
concerning the proper date to cut off backpay. See id. Further,
assessing the backpay at the modest amount of approximately $20,000
per year over a five-year period was not improper.4
The same cannot be said of the district court’s award of
frontpay, which was based on an advisory jury verdict. See Julian
v. City of Houston, 314 F.3d 721, 728 n.25 (5th Cir. 2002)
(district court may determine frontpay with the assistance of an
4
The backpay award was adjusted for the amount of disability
compensation Barrios received from DuPont during this period.
11
advisory jury). We review the district court’s award of frontpay
for abuse of discretion. Id. at 728; see also Giles v. Gen. Elec.
Co., 245 F.3d 474, 489 (5th Cir. 2001).
“Front pay is awarded to compensate the plaintiff for
lost future wages and benefits.” Rutherford v. Harris County, 197
F.3d 173, 188 (5th Cir. 1999) (quoting Shirley v. Chrysler First,
Inc., 970 F.2d 39, 44 (5th Cir. 1992)). Although reinstatement is
preferred, frontpay may be awarded if reinstatement is not
feasible. Id.5 The key issue before this court is “whether the
district court adequately explained why it awarded front pay.” Id.
The district court concluded that Barrios was likely to
have continued working for DuPont despite her walking impairment.
This conclusion was based on testimony that Barrios was hard-
working, committed, and had a “high tolerance for pain.” Given
Barrios’s steadily deteriorating medical condition, however, her
doctor’s repeated statements as time went on that she remained
unable to work, and the fact that the trial occurred more than
three years after her doctor’s first disability determination and
five years after the adverse FCE, the court’s finding that Barrios
could work for nearly ten more years post-judgment defies reality
and the record. As she was unable to work in the future, Barrios
was not eligible to receive “future wages and benefits.” See,
5
DuPont also challenges the district court’s finding that
reinstatement was infeasible; however, because the district court’s award of
frontpay was an abuse of discretion, we do not address this argument.
12
e.g., McInnis v. Fairfield Cmtys., Inc., 458 F.3d 1129, 1146 (10th
Cir. 2006) (frontpay award must not grant plaintiff a windfall).
Although the jury’s determination of the backpay period was not
clearly erroneous, the district court’s award of frontpay was an
abuse of discretion. Only the backpay award can stand.
D. Punitive Damages
Finally, DuPont challenges the award of punitive damages.
It argues that there was no evidence of malice or reckless
indifference and that punitive damages are unavailable as a matter
of law absent a finding of compensatory damages.
A plaintiff may recover punitive damages if the defendant
acted “with malice or with reckless indifference to the federally
protected rights of an aggrieved individual.” 42 U.S.C.
§ 1981a(b)(1). The availability of punitive damages turns on the
defendant’s state of mind, not the nature of the defendant’s
egregious conduct. Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 535,
119 S. Ct. 2118, 2124 (1999). The employer “must at least dis-
criminate in the face of a perceived risk that its actions will
violate” the ADA. Id. at 536, 119 S. Ct. at 2125. Moreover, the
plaintiff must show that the “malfeasing agent served in a
‘managerial capacity’ and committed the wrong while ‘acting in the
scope of employment.’” Rubinstein v. Adm’rs of the Tulane Educ.
Fund, 218 F.3d 392, 405 (5th Cir. 2000) (citing Kolstad, 527 U.S.
at 541, 119 S. Ct. at 2127). However, under the good-faith excep-
13
tion, “an employer may not be vicariously liable for the
discriminatory employment decision of managerial agents where these
decisions are contrary to the employer’s good-faith efforts to
comply with Title VII.” Id. (citing Kolstad, 527 U.S. at 545,
119 S. Ct. at 2129) (internal quotation marks omitted).
There was sufficient, albeit disputed, evidence to
support the jury finding that DuPont intentionally discriminated
against Barrios with malice or with reckless disregard for her
rights. DuPont was aware of its responsibilities under the ADA.
Yet, viewed in the light most favorable to the verdict, DuPont made
Barrios’s job more difficult. The company placed Barrios’s printer
over one hundred feet from her desk in spite of her walking
difficulties, whereas other lab clerks’ printers were adjacent to
their desks. DuPont refused to allow Barrios to demonstrate her
ability to evacuate before she was terminated — for inability to
evacuate. The company spent years trying to convince Barrios to
retire on disability. But the crowning evidentiary blow against
DuPont is that after Barrios attempted to get her job back, a
DuPont supervisor stated that he no longer wanted to see her
“crippled crooked self, going down the hall hugging the walls.”
The supervisor’s denial of this remark under oath, like DuPont’s
rejoinder to other negative evidence, was subject to the jury’s
credibility assessment. The jury likewise could have rejected
DuPont’s good-faith defense based on the conclusory assertions by
two DuPont employees that they comply with the law. Cf. Hatley v.
14
Hilton Hotels Corp., 308 F.3d 473, 477 (5th Cir. 2002) (employer’s
well-publicized policies, training, grievance procedure, and
investigation of plaintiff’s complaint were sufficient to sustain
good-faith defense).
DuPont alternatively contends that the punitive damages
award was impermissible in the absence of compensatory damages;
front- and backpay awards are “equitable” remedies, rather than
compensatory. Whether this is a correct interpretation of 42
U.S.C. § 1981a is an issue of first impression in our court. We
review this legal question de novo. La. ACORN Fair Housing v.
LeBlanc, 211 F.3d 298, 301 (5th Cir. 2000), cert. denied, 532 U.S.
904, 121 S. Ct. 1225 (2001).
The analysis begins with the text of the statute. Doe v.
KPMG, LLP, 398 F.3d 686, 688 (5th Cir. 2005). Section 1981a(b)(1)
authorizes punitive damages if the defendant acts “with malice or
with reckless indifference to the federally protected rights of an
aggrieved individual.” Because subsection (b)(2) states that
“[c]ompensatory damages awarded under this section shall not
include backpay,” DuPont contends that backpay is excluded from
compensatory damages. As the district court correctly noted,
however, nothing in the text of the statute limits an award of
punitive damages to cases in which the plaintiff also receives
compensatory damages. See Hennessy v. Penril Datacomm Networks,
Inc., 69 F.3d 1344, 1352 (7th Cir. 1995); see also Corti v. Storage
Tech. Corp., 304 F.3d 336, 342 (4th Cir. 2002). Other courts of
15
appeals have uniformly rejected DuPont’s assertion and have held
that an award of wage loss alone can sustain a statutory award of
punitive damages.6
DuPont relies upon LeBlanc to support its argument that
the “equitable” awards of front- and backpay are insufficient to
sustain an award of punitive damages. See 211 F.3d 298, 301 (5th
Cir. 2000). In a Fair Housing Act case in which no compensatory
damages were awarded for a statutory violation, this court
disallowed a punitive damages award absent an award of actual
damages or a constitutional violation. Id. at 303 & n.3. DuPont
asserted at oral argument that LeBlanc covered all civil rights
cases in this circuit.
Although LeBlanc surveyed the landscape concerning
punitive damages under various statutes and around the circuits,
the case ultimately ruled on their availability (a) under the Fair
Housing Act and (b) in a case where no compensatory damages of any
sort were awarded. Under Section 1981a, back- and frontpay awards
serve a compensatory function, leading courts to conclude that a
6
See Tisdale v. Fed. Express Corp., 415 F.3d 516, 534 (6th Cir. 2005)
(“Because backpay awards under Title VII serve a similar purpose as compensatory
damages awards under the common law, courts have held they may be considered in
determining the appropriate size of a punitive damages award.”); Salitros v.
Chrysler Corp., 306 F.3d 562, 575 (8th Cir. 2002) (award of frontpay is
sufficient to sustain the punitive damage award because “the common law policy
prohibiting punitive damages where the plaintiff has not shown any harm is not
implicated where the plaintiff has shown wage loss”); EEOC v. W&O, Inc., 213 F.3d
600, 615 (11th Cir. 2000) (“punitive damages may be appropriate where a plaintiff
has received back pay but no compensatory damages”). Although we need not and
do not decide or endorse their position, two courts of appeals have even upheld
punitive damage awards in the absence of either compensatory damages or backpay.
Cush-Crawford v. Adchem Corp., 271 F.3d 352, 359 (2d Cir. 2001); Timm v.
Progressive Steel Treating, Inc., 137 F.3d 1008, 1010 (7th Cir. 1998).
16
Fair Housing Act case is not analogous. See Corti, 304 F.3d at
343. Moreover, Barrios’s backpay award was issued precisely to
remedy her wage loss following illegal termination by DuPont.
LeBlanc is thus distinguishable on both the law and the facts.
DuPont also overlooks that in Rubinstein v. Administrators of the
Tulane Educational Fund, 218 F.3d 392, 407 (5th Cir. 2000), this
court sustained a punitive damages award where the plaintiff
received only compensation damages for lost wages. Consequently,
we do not find persuasive DuPont’s attempt to characterize wage
loss as an exclusively equitable remedy that is insufficient to
support an award of punitive damages. See Great-West Life &
Annuity Ins. Co. v. Knudson, 534 U.S. 204, 210, 218 n.4, 122 S. Ct.
708, 712, 717 n.4 (2002).
III. CONCLUSION
For the reasons discussed above, we AFFIRM liability and
the awards of backpay and punitive damages but REVERSE the award of
frontpay.
AFFIRMED IN PART, REVERSED IN PART.
17