United States District Court, W.D. Virginia, Roanoke Division
MEMORANDUM OPINION AND ORDER
Elizabeth K. Dillon United States District Judge.
Linda Blackburn Dalton moves for leave to file an
interlocutory appeal from the court's dismissal of her
claim for compensatory damages, punitive damages, and the
jury demand for her retaliation claim pursuant to the
Americans with Disabilities Act (ADA). (Oral Order, Dkt. No.
20.) For the following reasons, this motion is denied.
filed this action on March 1, 2019. (Compl., Dkt. No. 1.) She
alleges claims against Lewis-Gale Medical Center, LLC for
discrimination, retaliation, and failure to accommodate in
violation of the ADA. Lewis-Gale moved to dismiss on April
30, 2019. (Dkt. No. 5.) On June 12, 2019, the court issued an
order notifying the parties of its “intent to construe
a portion of defendant's motion to dismiss as a motion
for summary judgment. Specifically, the court will consider
under Rule 56, rather than Rule 12, whether compensatory and
punitive damages (and hence, any right to a jury on that
claim) are available for plaintiff's ADA retaliation
claim.” (6/12/19 Order 1, Dkt. No. 17.) On June 18,
2019, the court held a hearing on the motion to dismiss and
issued an oral order dismissing the claim for compensatory
and punitive damages and the related jury demand for
Dalton's ADA retaliation claim.
general, appellate review is reserved for final judgments. 28
U.S.C. § 1291. Notwithstanding this general rule, 28
U.S.C. § 1292(b) allows for interlocutory appeals in
limited circumstances. In order to satisfy the statutory
requirements for discretionary appeal under § 1292(b), a
district judge must certify (1) that the order involves a
controlling question of law, (2) as to which there is
substantial ground for difference of opinion, and (3) that an
immediate appeal from the order may materially advance the
ultimate termination of the litigation. Id. This
language has been construed as granting district courts
“circumscribed authority to certify for immediate
appeal interlocutory orders deemed pivotal and
debatable.” Swint v. Chambers Cnty.
Comm'n, 514 U.S. 35, 46 (1995). Because §
1292(b) is contrary to the general rule that appeals may be
had only after a final judgment, it should be used sparingly
and its requirements must be strictly construed. Myles v.
Laffitte, 881 F.2d 125, 127 (4th Cir. 1989). The
certification of an interlocutory appeal therefore requires
“exceptional circumstances that justify a departure
from the basic policy limiting appellate review to final
judgments.” Terry v. June, 368 F.Supp.2d 538,
539 (W.D. Va. 2005) (citing Coopers & Lybrand v.
Livesay, 437 U.S. 463, 475 (1978)).
unpublished opinions, the Fourth Circuit has held that
compensatory damages, punitive damages, and a jury trial are
unavailable for retaliation claims under the ADA.
See Rhoads v. FDIC, 94 Fed.Appx. 187, 188
(4th Cir. 2004); Bowles v. Carolina Cargo, Inc., 100
Fed.Appx. 889, 890 (4th Cir. 2004). In support, both cases
relied on Kramer v. Banc of Am. Sec., LLC,
355 F.3d 961, 965 (7th Cir. 2004). In Kramer, the
court reasoned as follows:
We thus conclude that the 1991 Civil Rights Act does not
expand the remedies available to a party bringing an ADA
retaliation claim against an employer and therefore
compensatory and punitive damages are not available. A close
reading of the plain language of § 1981a(a)(2) makes it
clear that the statute does not contemplate compensatory and
punitive damages for a retaliation claim under the ADA.
Section 1981a(a)(2) permits recovery of compensatory and
punitive damages (and thus expands the remedies available
under § 2000e-5(g)(1)) only for those claims listed
therein. With respect to the ADA, § 1981a(a)(2) only
lists claims brought under §§ 12112 or 12112(b)(5).
Because claims under the ADA (§ 12203) are not listed,
compensatory and punitive damages are not available for such
claims. Instead, the remedies available for ADA retaliation
claims against an employer are limited to the remedies set
forth in § 2000e(5)(g)(1).
355 F.3d at 965. Moreover, because the plaintiff “was
not entitled to recover compensatory and punitive damages,
she has no statutory or constitutional right to a jury
trial.” Id. at 966. The Ninth Circuit
subsequently agreed with the Seventh Circuit, finding that
its “reliance on the plain language of 42 U.S.C. §
1981a(a)(2) adheres more closely to the precepts of statutory
construction.” Alvarado v. Cajun Operating
Co., 588 F.3d 1261, 1268 (9th Cir. 2009).
cites a series of cases to the contrary, including circuit
court opinions from the Second, Eighth, and Tenth Circuits.
See Muller v. Costello, 187 F.3d 298, 314 (2d Cir.
1999); Salitros v. Chrysler Corp., 306 F.3d 562, 570
(8th Cir. 2002); Foster v. Time Warner Entm't
Co., 250 F.3d 1189, 1196-98 (8th Cir. 2001); EEOC v.
Wal-Mart Stores, Inc., 187 F.3d 1241, 1249 (10th Cir.
1999). As the Kramer court explained, however, these
decisions “focused on whether there was sufficient
evidence to award compensatory and punitive damages, but none
examined the legal question of whether such damages were
authorized for an ADA retaliation claim.” 355 F.3d at
965. There is contrary district court authority, see,
e.g., Baker v. Windsor Republic Doors,
635 F.Supp.2d 765, 771 (W.D. Tenn. 2009), Rumler v.
Dep't of Corr., State of Fla., 546 F.Supp.2d 1334,
1342-43 (M.D. Fla. 2008), but not within this circuit.
See, e.g., Via v. Comm'n Corp. of Am.,
Inc., 311 F.Supp.3d 812, 821 (W.D. Va. 2018)
(“Although Rhoads is an unpublished decision,
the court finds the reasoning of Kramer, on which it
relies, persuasive.”); Harvey v. GoBo, Inc.,
Case No. 6:16-cv-00076, 2017 WL 4973205, at *4 (W.D. Va. Nov.
1, 2017) (“Plaintiff does not contest these authorities
and admits that ‘there is no binding authority in the
Fourth Circuit' permitting the aforementioned remedies.
Thus, the Plaintiff's retaliation claim will be tried to
the Court in equity.”); Akbar-Hussain v. ACCA,
Inc., 1:16cv1323 (JCC/IDD), 2017 WL 176596, at *5 (E.D.
Va. Jan. 17, 2017) (“Having adopted the reasoning in
Kramer, this Court now finds that compensatory and
punitive damages are not available for retaliation-based
claims under the ADA.”). Because there does not appear
to be a substantial difference of opinion on this issue
within the Fourth Circuit, the court will not grant leave to
pursue an interlocutory appeal. See Hinton v. Va. Union
Univ., Civil Action No. 3:15cv569, 2016 WL 3922053, at
*8 (E.D. Va. July 20, 2016) (“The fact that a handful
of district courts outside the Fourth Circuit have concluded
otherwise . . . does not mean that there is a
‘substantial ground for difference of opinion'
within the Fourth Circuit.”); United States ex rel.
Howard v. Harper Constr. Co., No. 7:12-cv-215-BO, 2015
WL 9463103, at *2 (E.D. N.C. Dec. 28, 2015) (“That
non-binding precedent in other jurisdictions may counsel a
different result does not constitute substantial grounds for
a difference of opinion.”); Nat'l Cmty.
Reinvestment Coalition v. Accredited Home Lenders Holding
Co., 597 F.Supp.2d 120, 122 (D.D.C. 2009) (denying
request for interlocutory appeal where moving party did not
“demonstrate that there is a split within this
district on this issue”).
alternative, Dalton requests a declaration pursuant to the
collateral order doctrine. See Cohen v. Beneficial Indus.
Loan Corp., 337 U.S. 541, 546 (1949). An appealable
collateral order must “(1) conclusively determine the
disputed question, (2) resolve an important issue completely
separate from the merits of the action, and (3) be
effectively unreviewable on appeal from a final
judgment.” Cobra Nat. Res., LLC v. Fed. Mine Safety
& Health Review Comm'n, 742 F.3d 82, 86 (4th
Cir. 2014). The court's order dismissing Dalton's
claim for compensatory and punitive damages will be
reviewable upon the entry of final judgment. Therefore,
Dalton's request for a declaration pursuant to the
collateral order doctrine will also be denied.
foregoing reasons, Dalton did not demonstrate that there is
substantial ground for difference of opinion on the
recoverability of compensatory and punitive damages for an
ADA retaliation claim. Therefore, ...