Page

TABLE OF AUTHORITIES......................................................... ii

STATEMENT OF INTEREST............................................................................................. 1...............................................................................................

STATEMENT OF THE ISSUES................................................... 1

STATEMENT OF THE CASE...................................................... 2

A. Statement of Facts...................................................... 2

B. District Court Decisions............................................. 4

ARGUMENT................................................................................. 7

I. An impairment need not significantly restrict a major life activity to qualify as a disabilty under the amended ADA........................................................... 7

II. Burlington Northern’s dissuade-a-reasonable-worker standard controls the level of harm required for a claim of retaliation................................................... 10

III. Compensatory and punitive damages are available for ADA retaliation claims............................................ 19

CONCLUSION............................................................................ 29

CERTIFICATE OF COMPLIANCE............................................ 30

TABLE OF AUTHORITIES

Page(s)

Cases

Adams v. Anne Arundel Cnty. Pub. Schs., 789 F.3d 422 (4th Cir. 2015).................................................... 15, 16, 17, 18

Alvarado v. Cajun Operating Co., 588 F.3d 1261 (9th Cir. 2009)................................................................. 25, 26, 27

Baker v. Windsor Republic Doors, 635 F. Supp. 2d 765 (W.D. Tenn. 2009)........................................................ 23

Barnhart v. Peabody Coal Co., 537 U.S. 149 (2003)......... 22

Barnhart v. Walton, 535 U.S. 212 (2002)........................... 25

Bates v. Dura Auto. Sys., Inc., 767 F.3d 566 (6th Cir. 2014)...................................................................................... 27

Boone v. Goldin, 178 F.3d 253 (4th Cir. 1999).................. 14

Bowles v. Carolina Cargo, Inc., 100 F. App’x 889 (4th Cir. 2004) (per curiam).................................................. 24, 25

Burlington Indus., Inc., v. Ellerth, 524 U.S. 742 (1998)..... 16

Burlington N.& Santa Fe Ry. Co. v. White,
548 U.S. 53 (2006)................................................. passim

Cannon v. Jacobs Field Servs. N. Am., Inc., 813 F.3d 586 (5th Cir. 2016)................................................................ 9

CBOCS W., Inc. v. Humphries, 553 U.S. 442 (2008)......... 23

Darveau v. Detecon, Inc., 515 F.3d 334 (4th Cir. 2008).... 13, 18

Edmonson v. Eagle Nat’l Bank, 922 F.3d 535 (4th Cir. 2019)...................................................................................... 24

Edwards v. Brookhaven Sci. Assocs., LLC, 390 F. Supp. 2d 225 (E.D.N.Y. 2005)..................................................... 21

Fink v. Richmond, 405 F. App’x 719 (4th Cir. 2010)......... 10

Foster v. Time Warner Ent. Co., 250 F.3d 1189 (8th Cir. 2001)............................................................................. 21

Frogge v. Fox, No. 1:17CV155, 2019 WL 2418749 (N.D. W. Va. June 10, 2019).................................................. 10

Gomez-Perez v. Potter, 553 U.S. 474 (2008)................ 23, 27

Holland v. Washington Homes, Inc., 487 F.3d 208 (4th Cir. 2007)....................................................................... 14, 17

Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005) 23

Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562 (4th Cir. 2015)............................................................................... 9

James v. Booz–Allen & Hamilton, Inc., 368 F.3d 371 (4th Cir. 2004)................................................................ 14, 16

Kramer v. Banc of Am. Sec., LLC, 355 F.3d 961 (7th Cir. 2004)................................................................. 24, 25, 26

Laird v. Fairfax Cnty., 978 F.3d 887 (4th Cir. 2020)... passim

Lettieri v. Equant Inc., 478 F.3d 640 (4th Cir. 2007).......... 13

McMellon v. United States, 387 F.3d 329 (4th Cir. 2004) (en banc)............................................................................. 18

Muller v. Costello, 187 F.3d 298 (2d Cir. 1999)................. 21

Pressley v. Tupperware Long Term Disability Plan, 553 F.3d 334 (4th Cir. 2009)........................................................ 24

Reiter v. Maxi-Aids, Inc., No. 14 CV 3712, 2018 WL 557864 (E.D.N.Y. Jan. 19, 2018)............................................... 27

Rhoads v. FDIC, 94 F. App’x 187 (4th Cir. 2004) (per curiam).................................................................... 24, 25

Robinson v. Shell Oil Co., 519 U.S. 337 (1997)................. 19

Rochon v. Gonzales, 438 F.3d 1211 (D.C. Cir. 2006)........ 11

Rumler v. Dep’t of Corr., 546 F. Supp. 2d 1334 (M.D. Fla. 2008)............................................................................. 21

Salitros v. Chrysler Corp., 306 F.3d 562 (8th Cir. 2002)... 21

Scurlock-Ferguson v. City of Durham, 154 F. App’x 390 (4th Cir. 2005) (per curiam).......................................... 15

Scurlock-Ferguson v. City of Durham, 221 F. App’x 292 (4th Cir. 2007) (per curiam).................................... 14, 15

Shannon v. Sheahan, No. 01C252, 2005 WL 936601 (N.D. Ill. Mar. 24, 2005)......................................................... 28

Shields v. Credit One Bank, N.A., 32 F.4th 1218 (9th Cir. 2022)............................................................................... 9

Stewart v. Weast, 228 F. Supp. 2d 660 (D. Md. 2002)........ 10

Strothers v. City of Laurel, 895 F.3d 317 (4th Cir. 2018)... 15

Summers v. Altarum Inst., Corp., 740 F.3d 325 (4th Cir. 2014)........................................................................... 7, 9

Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002)................................................................... 7, 8, 10

Von Gunten v. Maryland, 243 F.3d 858 (4th Cir. 2001)..... 11

Statutes

Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213............................................................................... passim

42 U.S.C. § 12102(1)(A)............................................. 5, 8

42 U.S.C. § 12102(4)(A)................................................. 8

42 U.S.C. § 12102(4)(B)................................................. 8

42 U.S.C. § 12112....................................... 22, 23, 26, 27

42 U.S.C. § 12112(a)...................................................... 7

42 U.S.C. § 12112(b)(5).......................................... 26, 27

42 U.S.C. § 12117(a).............................................. 20, 26

42 U.S.C. § 12188................................................... 20, 26

42 U.S.C. § 12203................................................... 19, 26

42 U.S.C. § 12203(a)............................................. passim

42 U.S.C. § 12203(c).............................................. 19, 20

Civil Rights Act of 1991, 42 U.S.C. § 1981a............... passim

42 U.S.C. § 1981a(a)(1).......................................... 20, 22

42 U.S.C. § 1981a(a)(2)......................................... passim

42 U.S.C. § 1981a(a)(3)................................................ 22

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17..................................................... passim

.... 42 U.S.C. § 2000e-2(a)(1)............................................. 12

42 U.S.C. § 2000e-3(a)................................................. 12

42 U.S.C. § 2000e-5...................................................... 20

29 U.S.C. § 794a................................................................ 25

42 U.S.C. § 2000a-3............................................................. 6

Other Authorities

Pub. L. No. 102-166, sec. 3, 105 Stat. 1071 (1991).............. 6

Pub. L. No. 110-325, 122 Stat. 3553 (2008)......................... 7

29 C.F.R. § 1630.2(j)(1)(ii).............................................. 4, 9

29 C.F.R. § 1630.2(j)(1)(iv)................................................. 9

76 Fed. Reg. 16978 (Mar. 5, 2011)...................................... 8

Fed. R. App. P. 29(a)........................................................... 1

STATEMENT OF INTEREST

Congress charged the Equal Employment Opportunity Commission with administering and enforcing federal laws prohibiting employment discrimination, including the prohibitions on employment discrimination under the Americans with Disabilities Act (ADA), as amended, 42 U.S.C. §§ 12101-12213. The district court here applied a standard for assessing disabilities that Congress rejected in the ADA Amendments Act of 2008 (ADAAA). It also analyzed the adverse actions for the ADA retaliation claim using a standard that was substantively the same standard it used for the discrimination claim, in contravention of the Supreme Court’s decision in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). Later, the district court held incorrectly that compensatory and punitive damages are unavailable for ADA retaliation claims. Because the EEOC has a strong interest in ensuring that courts apply the correct standards to ADA claims and that appropriate damages are available for those claims, the EEOC offers its views to the Court. See Fed. R. App. P. 29(a).

STATEMENT OF THE ISSUES[1]

1. Whether the district court erred by requiring the plaintiff to show that his physical impairment “significantly restricted” a major life activity, after
Congress had rejected that standard in the ADAAA.

2. Whether the district court’s standard for adverse actions in retaliation claims aligns with the Supreme Court’s standard in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006).

3. Whether compensatory and punitive damages are available for employment-based retaliation under § 503(a) of the ADA, 42 U.S.C. § 12203(a).

STATEMENT OF THE CASE

A. Statement of Facts

Hewlett Packard (HP) hired Plaintiff-Appellant Israelitt in 2013 as a senior architect in its Cybersecurity Solutions Group, where he worked with information systems.[2] JA31, JA321. Israelitt has hallux rigiditis, which involves “degenerative changes in his right first metatarsophalangeal joint and right great toe.” JA31, JA1186. Israelitt testified that the impairment can cause significant pain, to the point where he “can barely walk.” JA1014.

HP originally selected Israelitt, his supervisor George Romas, and several other employees to attend the HP Protect 2013 conference. JA31-32, JA1197, JA1200. Israelitt registered to attend using a code HP had given him and other employees, and he separately asked event staff for a hotel room for a person with disabilities. JA32, JA553, JA1203. They ultimately found him such a room, but informed him that the conference code he used was a customer code. JA32, JA554-555. Because of the issue with his conference code, Israelitt’s registration was invalid. JA32, JA554-555.

Israelitt asked Romas to tell him if he could not attend so he could “advise the folks handling the disability accommodation . . . .” JA561. Israelitt also emailed another employee, stating that it appeared that his disability information “has in itself become the reason I can’t go now.” JA548. Ultimately, Israelitt did not attend the conference. JA33.

Israelitt testified that HP then started treating him differently. JA145, JA1024. Romas reassigned Israelitt to a longer-term Technology Roadmap project and told Israelitt not to attend daily “scrum” meetings. JA34. HP also scheduled Israelitt and other employees to attend a team-building meeting in Florida to prepare to bid on Department of Homeland Security (DHS) projects. JA35, JA1063-1064. Israelitt testified that he asked to be listed as an extra driver on a vehicle because of his impairment. JA929, JA994-995. Shortly after that, Jess May, another HP lead, told Israelitt he should not bill to the DHS account or travel to Florida. JA35, JA1244. Israelitt thus missed the Florida meeting. JA35, JA931.

Shortly after that Florida meeting, Romas gave Israelitt a performance warning and instructed him to complete the Technology Roadmap within thirty days. JA35, JA625-626. Israelitt did not complete the project because, according to Israelitt, it would typically take months for two employees to complete. JA924. Romas then terminated Israelitt. JA35, JA629-630.

Israelitt filed suit, pleading several claims under the ADA, including discrimination and retaliation. JA13-29. HP moved for summary judgment on all claims. R.48.

B. District Court Decisions

The district court began with Israelitt’s disability discrimination claim. JA38. Although Israelitt testified that the hallux rigiditis caused significant pain, the district court held the condition did not substantially limit any major life activities and Israelitt therefore did not have a disability under the ADA. JA39-41. The district court quoted the EEOC’s regulation that preceded the ADA Amendments Act of 2008 (ADAAA): “‘Substantially limits’ is defined as ‘significantly restricted . . . .’” See JA39 (quoting 29 C.F.R. § 1630.2(j)(1)(ii)). Israelitt’s impairment did not meet that standard, according to the district court, which cited other cases applying pre-ADAAA standards. JA39-41. Even if Israelitt had made such a showing, the district court held, the removals from the HP Protect 2013 conference, the daily “scrum” meetings, and the Florida trip were not adverse actions because they did not “result in ‘some significant detrimental effect.’” JA41-42 (citation and emphasis omitted). The termination was an adverse action, the district court held, but it was not causally connected to Israelitt’s disability. JA42-43.

Turning to retaliation, the district court allowed only Israelitt’s retaliatory termination claim to proceed. JA44-48. Israelitt had asserted several other potentially adverse actions, including withdrawal from the HP Protect 2013 conference, removal from the “scrum” meetings, removal from the team-building meeting in Florida, and increased workload. R.53 at 23-25. The district court held that only the termination was an adverse action because, “[a]s outlined above in Section III(A)[discussing Israelitt’s discrimination claim],” the removal from the HP Protect 2013 conference, the daily meetings, and the Florida trip were not adverse actions.[3] JA45.

In reaching this conclusion, the district court acknowledged that “[w]hat qualifies as an adverse action differs slightly in the retaliation and unlawful discrimination contexts.” JA45 n.4 (emphasis added). But that difference, it held, is “only in terms of the scope of actions covered (i.e. whether the acts and harm occurred in the workplace or not) and not in terms of ‘the required effect or adversity from such actions.’” JA45 n.4 (emphasis in original) (quoting Laird v. Fairfax Cnty., 978 F.3d 887, 893 (4th Cir. 2020)). And “several of [Israelitt’s] claimed adverse acts did not create significant detrimental effects,” the district court reasoned, so “the result is substantively the same in both retaliation and discrimination contexts.” JA45 n.4.

Before trial, the district court held that Israelitt did not have a right to a jury because he could not receive compensatory or punitive damages for his ADA retaliation claim. JA59. The district court relied on two unpublished Fourth Circuit cases, as well as decisions from the Seventh Circuit, Ninth Circuit, and several district courts. JA56-59. Although the district court acknowledged that several out-of-circuit cases had held that compensatory and punitive damages are available for ADA retaliation claims, it followed the decisions from within the Fourth Circuit. JA59.

After a bench trial, the district court found for Enterprise. JA62-80. Assuming Israelitt engaged in protected activity and finding his termination was an adverse action, the district court found that Israelitt was not terminated because of his protected activity. JA77.

ARGUMENT

I. An impairment need not significantly restrict a major life activity to qualify as a disability under the amended ADA.

The ADA prohibits discrimination against a qualified individual with a “disability.” 42 U.S.C. § 12112(a). A disability is, among other things, “a physical or mental impairment that substantially limits one or more major life activities.” Id. § 12102(1)(A). The district court held that Israelitt did not have a disability because he was not “significantly restricted in his ability to walk (or perform any other major life activity) during his period of employment.” JA39. In doing so, the district court quoted an EEOC regulation that the agency rescinded after Congress passed the ADAAA in 2008, as well as cases using pre-ADAAA legal standards. JA39-41. That reliance on pre-ADAAA authority was error.

Congress passed the ADAAA because, among other things, “courts had construed the term ‘disability’ too narrowly.” Summers v. Altarum Inst., Corp., 740 F.3d 325, 330 (4th Cir. 2014). The Supreme Court, according to Congress, had “narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect.” Pub. L. No. 110-325, § 2(a)(4), 122 Stat. 3553 (2008) (42 U.S.C.A. § 12101 note). One such opinion was Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), which interpreted “‘substantially limits’ to require a greater degree of limitation than was intended by Congress.” Pub. L. No. 110-325, § 2(a)(7); see Toyota, 534 U.S. at 198 (holding that substantially limits means having “an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives”). Congress similarly rejected an EEOC regulation “defining the term ‘substantially limits’ as ‘significantly restricted’” because the regulation “express[ed] too high a standard,” Pub. L. No. 110-325, § 2(a)(8), and Congress conveyed its expectation that the EEOC would revise the regulation, id. § 2(b)(6).

Congress did not alter the definition of disability at 42 U.S.C. § 12102(1)(A), but it added two sections to the ADAAA to ensure a broader reading of disability. First, it added 42 U.S.C. § 12102(4)(A), stating that “[t]he definition of disability in this Act shall be construed in favor of broad coverage . . . .” Then Congress emphasized “[t]he term ‘substantially limits’ shall be interpreted consistently with the findings and purposes of the ADA Amendments Act of 2008.” Id. § 12102(4)(B).

The EEOC subsequently revised its regulation defining “substantially limits” to say that “a limitation need not ‘significantly’ or ‘severely’ restrict a major life activity.” 76 Fed. Reg. 16978, 16978 (Mar. 25, 2011); see 42 U.S.C. § 12205a (authorizing the EEOC to issue regulations implementing the definition of disability). The regulation now states, “An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.” 29 C.F.R. § 1630.2(j)(1)(ii) (2012) (emphases added). It also emphasizes that “substantially limits” must “be interpreted and applied to require a degree of functional limitation that is lower than the standard for ‘substantially limits’ applied prior to the ADAAA.” Id.§ 1630.2(j)(1)(iv).

This Court has held that “relying on pre-ADAAA cases” for unduly strict standards constitutes legal error. Summers, 740 F.3d at 330. Indeed, in Jacobs v. N.C. Administrative Office of the Courts, 780 F.3d 562, 573-74 (4th Cir. 2015), this Court reversed a district court ruling that the plaintiff was not “substantially limited,” noting that “[t]he ADAAA expressly rejected” the requirement that a plaintiff show “she was ‘significantly restricted’ in a major life activity.” Other circuits are in accord. The Ninth Circuit recited the regulation’s history and the ADAAA’s effect on it, holding that a district court erred in relying on another part of the pre-ADAAA regulation. Shields v. Credit One Bank, N.A., 32 F.4th 1218, 1223-25 (9th Cir. 2022); see also Cannon v. Jacobs Field Servs. N. Am., Inc., 813 F.3d 586, 590 (5th Cir. 2016) (“Whatever merit [the district court’s] finding of no disability may have had under the original ADA, it is at odds with changes brought about by the ADA Amendments Act of 2008.”).

Despite the ADAAA’s rejection of a “significantly restricted” standard, the district court used that standard here. It cited the EEOC’s pre-ADAAA regulation and held that Israelitt had not adduced evidence that would allow a jury to find that “he was significantly restricted” in a major life activity. JA39. The district court then cited cases that either predated the ADAAA or applied a pre-ADAAA standard. JA40-41; see, e.g., Frogge v. Fox, No. 1:17CV155, 2019 WL 2418749, at *5-6 (N.D. W. Va. June 10, 2019) (relying on pre-ADAAA EEOC regulation); Stewart v. Weast, 228 F. Supp. 2d 660, 662 (D. Md. 2002) (relying on Toyota); see also Fink v. Richmond, 405 F. App’x 719, 722-23 (4th Cir. 2010) (noting the district court’s reasoning that the ADAAA did not apply retroactively to the case before it). In articulating and applying that pre-ADAAA standard, the district court erred.

II. Burlington Northern’s dissuade-a-reasonable-worker standard controls the level of harm required for a claim of retaliation.

The district court held that many of the adverse actions alleged for Israelitt’s retaliation claim were insufficient because they “did not create significant detrimental effects.” JA45 & n.4. That “significant detrimental effects” standard, however, arose in the discrimination context before Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), and it conflicts with the dissuade-a-reasonable-worker standard the Supreme Court adopted in that case for retaliation claims.

The ADA prohibits retaliation, 42 U.S.C. § 12203(a), and courts analyze ADA retaliation claims using Title VII’s retaliation framework. See Laird v. Fairfax Cnty., 978 F.3d 887, 893 & n.5 (4th Cir. 2020). Before Burlington Northern, several circuits “appl[ied] the same standard for retaliation that they appl[ied] to a substantive discrimination offense,” requiring an “‘adverse effect on the terms, conditions, or benefits of employment.’” Burlington Northern, 548 U.S. at 60 (quoting this Court’s opinion in Von Gunten v. Maryland, 243 F.3d 858, 866 (4th Cir. 2001)) (internal quotation marks omitted).

The Supreme Court rejected that approach, changing the analysis in two ways: first, it looked to whether Title VII’s antiretaliation provision is limited to “only those employer actions and resulting harms that are related to employment or the workplace”; second, it looked to “how harmful an act of retaliatory discrimination must be.” Id. at 61. On the first question, the Supreme Court held that the protection against retaliation “extends beyond workplace-related or employment-related retaliatory acts and harm.” Id. at 67. On the second, the Supreme Court clarified that retaliation need only involve harm that “‘might have dissuaded a reasonable worker from making or supporting a charge of discrimination.’” Id. at 68 (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)) (internal quotation marks omitted). Here, the district court acknowledged and applied the first change, but not the second.

Retaliatory adverse actions are not limited to the workplace, the Supreme Court held, in part because of differences in the statutory text. Title VII prohibits discrimination “with respect to . . . compensation, terms, conditions, or privileges of employment” based on a protected characteristic. 42 U.S.C. § 2000e-2(a)(1). For retaliation claims, however, Title VII bars discrimination against any “employee[] or applicant[] for employment . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” Id. § 2000e-3(a). The Supreme Court compared these two provisions and noted the substantive prohibition on discrimination “explicitly limit[s]” its reach “to actions that affect employment or alter the conditions of the workplace.” Burlington Northern, 548 U.S. at 62. The retaliation provision includes “[n]o such limiting words.” Id. The Supreme Court thus held “Title VII’s substantive provision and its antiretaliation provision are not coterminous,” and it “reject[ed] the standards . . . that have treated the antiretaliation provision as forbidding the same conduct prohibited by the antidiscrimination provision.” Id. at 67.

The Supreme Court next addressed “the level of seriousness to which . . . harm must rise before it becomes actionable retaliation.” Id. Adopting the standard from the Seventh Circuit and D.C. Circuit—and thereby implicitly rejecting this Court’s standard equating the harm necessary for substantive discrimination and for retaliation—the Supreme Court held that Title VII prohibits actions that are “materially adverse,” meaning they might have dissuaded a reasonable worker from engaging in protected activity. Id. at 67-68. The Court explained that it chose “material adversity” to “separate significant from trivial harms.” Id. at 68 (emphasis omitted). But, the Supreme Court emphasized, “the significance of any given act of retaliation will often depend upon the particular circumstances.” Id. at 69. Thus, the Supreme Court observed, “refus[ing] to invite an employee to a lunch is normally trivial,” but “excluding an employee from a weekly training lunch that contributes significantly to the employee’s professional advancement might well deter a reasonable employee from complaining about discrimination.” Id. And a schedule change that may otherwise appear trivial “may matter enormously to a young mother with school-age children.” Id. Applying this standard, the Supreme Court held that, among other things, a suspension without pay for which the employee was later reimbursed could be a materially adverse action. Id. at 71-73.

This Court has long recognized Burlington Northern’s effect. Shortly after the Supreme Court’s decision, it acknowledged Burlington Northern “rejected our circuit’s formulation” of the adverse action requirement. Lettieri v. Equant Inc., 478 F.3d 640, 650 n.2 (4th Cir. 2007). It then applied the Burlington Northern standard in Darveau v. Detecon, Inc., 515 F.3d 334, 342-43 (4th Cir. 2008), which involved a retaliation claim under the Fair Labor Standards Act (FLSA). There, this Court held that Burlington Northern’s materially adverse action standard applies to the FLSA and that a plaintiff therefore “need only allege . . . action ‘that would have been materially adverse to a reasonable employee’ because the ‘employer’s actions . . . could well dissuade a reasonable worker’” from engaging in protected activity. Id. at 343 (quoting Burlington Northern, 548 U.S. at 57). And the Fourth Circuit continues to acknowledge Burlington Northern’s effect. See Perkins v. Int’l Paper Co., 936 F.3d 196, 213 (4th Cir. 2019) (in Title VII case, stating that “the materially adverse action requirement . . . is different from an adverse employment action required for a disparate treatment claim” and citing the dissuade-a-reasonable-worker standard).

This Court also recognized that Burlington Northern’s standard superseded the “significant detrimental effect” standard for retaliation cases that this Court had drawn from discriminatory reassignment claims.^{^[4]} See Scurlock-Ferguson v. City of Durham, 154 F. App’x 390 (4th Cir. 2005) (per curiam), vacated, 548 U.S. 924 (2006). In Scurlock-Ferguson, a retaliation case, this Court held that the plaintiff’s transfer was not actionable and recited the “significant detrimental effect” standard. Id. at 394. After the plaintiff filed a petition for writ of certiorari, the Supreme Court vacated Scurlock-Ferguson “for further consideration” after Burlington Northern, see 548 U.S. 924 (2006), and this Court remanded because the standard it had applied was inconsistent with Burlington Northern. Compare Scurlock-Ferguson v. City of Durham, 221 F. App’x 292, 292–93 (4th Cir. 2007) (per curiam) (remanding for reconsideration after Burlington Northern), and Scurlock-Ferguson, 154 F. App’x at 394 (applying “significant detrimental effect” standard).

That “significant detrimental effect” standard, though, reappeared in another retaliation case nearly a decade later. Adams v. Anne Arundel Cnty. Pub. Schs., 789 F.3d 422, 431 (4th Cir. 2015). Adams did not articulate Burlington Northern’s dissuade-a-reasonable-worker standard; instead, it stated that both discrimination and retaliation claims “require that there be an adverse employment action, which denotes some direct or indirect impact on an individual’s employment as opposed to harms immaterially related to it.”^{^[5]} Id. Adams acknowledged that Burlington Northern held that Title VII protects against “‘actions that would have been materially adverse to a reasonable employee,’” but Adams described the requirement as “harms that work a ‘significant’ detriment on employees.” Id. (quoting Burlington Northern, 548 U.S. at 57, 68). And in applying that test, Adams looked for an “impact on the terms and conditions of employment,” id., despite Burlington Northern’s unambiguous holding that the antiretaliation prohibition is not limited to the terms and conditions of employment. 548 U.S. at 62, 67. Adams then cited James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 376 (4th Cir. 2004)—a substantive discrimination case applying the “significant detrimental effect” standard—to hold the alleged actions did not work “some material change in the conditions of his employment.” 789 F.3d at 431 (citing James, 368 F.3d at 375). Adams thus appears to have articulated and applied the “significant detrimental effect” test without regard to Burlington Northern’s dissuade-a-reasonable-worker standard.^{^[6]}

This Court again articulated the “significant detrimental effect” test for a retaliatory transfer claim in Laird, 978 F.3d at 893. Laird recited Burlington Northern’s dissuade-a-reasonable-worker standard, but, relying on Adams, it stated that the adverse action for retaliation claims required a “‘significant’ detriment,” id. (quoting Adams, 789 F.3d at 431) (emphasis in original), while discrimination claims required “some significant detrimental effect,” id. (quoting Holland, 487 F.3d at 219, a substantive discrimination case) (emphasis in original). This Court then affirmed summary judgment on the plaintiff’s discrimination and retaliation claims, holding that her transfer was not an adverse action as to either claim because she had requested it. Id. at 895.

Here, the district court applied the “significant detrimental effect” standard to both Israelitt’s substantive discrimination claim and his retaliation claim. JA41, JA45 & n.4. Addressing Israelitt’s retaliation claim, the district court referred to the discussion “outlined above in Section III(A),”which involved Israelitt’s discrimination claim. JA45; see also JA38-43. For the discrimination claim, the district court quoted Laird, 978 F.3d at 893, for the principle that “[t]he adverse action must result in some significant detrimental effect.” JA41 (emphasis in original). And it later concluded: “What qualifies as an adverse action differs slightly in the retaliation and unlawful discrimination contexts, but only in terms of the scope of actions covered (i.e. whether the acts and harm occurred in the workplace or not) and not in terms of ‘the required effect or adversity from such actions.’” JA45 n.4 (quoting Laird, 978 F.3d at 893) (first emphasis added). As a result, the district court held that, other than the termination, the alleged adverse actions were not sufficient for a retaliation claim based only on its earlier analysis of Israelitt’s discrimination claim under the “significant detrimental effect” standard. See JA45.

By thus equating the standard for retaliation claims and substantive discrimination claims, the district court ignored Burlington Northern. While Burlington Northern requires the adverse action for retaliation claims to be material in order to “separate significant from trivial harms,” 548 U.S. at 68, that does not mean retaliation and discrimination claims require identical levels of harm. If they did, the Supreme Court would not have continued past its holding on the scope of the adverse action to clarify “how harmful an act of retaliatory discrimination must be,” which is “materially adverse,” i.e., that it might have dissuaded a reasonable worker from engaging in protected activity. Id. at 61, 67-70.

The district court’s reliance on Laird—which in turn had relied on Adams—for the significant detrimental effect standard suggests a need to clarify that that standard does not apply to retaliation claims. Instead, Burlington Northern’s dissuade-a-reasonable-worker standard governs. Even if Burlington Northern were somehow not directly on point—although it is—Darveau, as the earlier published opinion, would take precedence over Laird and Adams. See McMellon v. United States, 387 F.3d 329, 333 (4th Cir. 2004) (en banc) (“When published panel opinions are in direct conflict on a given issue, the earliest opinion controls, unless the prior opinion has been overruled by an intervening opinion from this court sitting en banc or the Supreme Court.”). We therefore request that this Court reiterate that an adverse action for retaliation claims is one that might well dissuade a reasonable worker from engaging in protected activity.

III. Compensatory and punitive damages are available for ADA retaliation claims.

The district court denied Israelitt a jury trial because it held he could not receive compensatory or punitive damages, but the language, context, and structure of the relevant statutes establish those damages are available for ADA retaliation claims. And, while this Court previously issued two non-binding unpublished opinions holding otherwise, we urge this Court not to adopt the reasoning of those decisions.

“The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997). Here, the relevant text and context are in parts of the ADA, Title VII, and the Civil Rights Act of 1991, 42 U.S.C. § 1981a.

Section 503 of the ADA, codified at 42 U.S.C. § 12203, prohibits retaliation against any individual for engaging in protected activity under “subchapter I, subchapter II [or] subchapter III” of the ADA. Id. § 12203(a), (c). These subchapters, commonly referred to as “Titles,” prohibit disability discrimination in different circumstances. Title I governs “Employment,” Title II governs “Public Services,” and Title III governs “Public Accommodations and Services Operated by Private Entities.” See id. §§ 12111–12117 (Title I), 12131–12165 (Title II), 12181–12189 (Title III). Titles I, II, and III contain their own remedies and enforcement provisions. See id. § 12117(a) (remedies and procedures for Title I); id. § 12133 (remedies and procedures for Title II); id. § 12188 (remedies and procedures for Title III). Title V, which contains the prohibition on retaliation, does not. Id. § 12203(c).

Section 503(c) of Title V instead states that the remedies and procedures available for retaliation claims are those available for violations of each respective subchapter (Titles I, II, or III), thus making the remedies for employment-based retaliation claims those remedies available under § 107(a) of Title I, 42 U.S.C. § 12117(a). See id. § 12203(c). Section 107(a) of Title I, governing employment discrimination, then states that the available remedies and procedures are those available under Title VII of the Civil Rights Act of 1964, including those found in § 706 of Title VII, 42 U.S.C. § 2000e-5. See id. § 12117(a). While § 706 does not itself authorize compensatory and punitive damages, the 1991 Civil Rights Act does authorize them for Title VII and ADA cases seeking relief for intentional discrimination. See id. § 1981a(a)(1) (authorizing damages for Title VII cases brought under § 706); id. § 1981a(a)(2) (authorizing damages for ADA cases brought under the powers and procedures of § 706).

Congress thus linked the remedies for ADA retaliation claims involving employment to the compensatory and punitive damages available through § 1981a. Through this direct, if extended, path, Congress provided compensatory and punitive damages for ADA retaliation claims. Indeed, other courts of appeals have affirmed compensatory and punitive damages awards for ADA retaliation claims, albeit without explicitly discussing their availability under § 503. Salitros v. Chrysler Corp., 306 F.3d 562, 566 (8th Cir. 2002); Foster v. Time Warner Ent. Co., 250 F.3d 1189, 1196-98 (8th Cir. 2001); Muller v. Costello, 187 F.3d 298, 306, 314-15 (2d Cir. 1999).

To be sure, Congress did not explicitly refer to § 503 in § 1981a(a)(2) itself, even as it referred to other provisions of the ADA. 42 U.S.C. § 1981a(a)(2) (listing § 102 and § 102(b)(5) of the ADA). But the textual links outlined above explain why there was no need for Congress to list the ADA’s retaliation provision in § 1981a(a)(2). See Rumler v. Dep’t of Corr., 546 F. Supp. 2d 1334, 1341-43 (M.D. Fla. 2008); Edwards v. Brookhaven Sci. Assocs., LLC, 390 F. Supp. 2d 225, 234-36 (E.D.N.Y. 2005).

Moreover, 1981a does not exclude ADA retaliation claims, although it specifically excludes other employment claims. Those exclusions provide important clues as to what the statute does—and does not—include within its scope. For Title VII claims, § 1981a affirmatively excludes disparate impact claims and claims where the complaining party can recover under 42 U.S.C. § 1981. Id. § 1981a(a)(1). For ADA claims, it affirmatively excludes disparate impact claims, as well as reasonable accommodation claims where the employer “demonstrates good faith efforts” to make a reasonable accommodation. Id. §§ 1981a(a)(2), (3). As a result, the absence of an explicit reference to ADA retaliation claims involving employment in § 1981a should not be read to mean those claims are excluded; had Congress meant to exclude those claims, it could have done so explicitly, as it did with other claims. See Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003) (“We do not read the enumeration of one case to exclude another unless it is fair to suppose that Congress considered the unnamed possibility and meant to say no to it.”).

ADA retaliation claims involving employment, meanwhile, fit comfortably within the scope of claims § 1981a(a)(2) includes. Section 1981a affirmatively provides for compensatory and punitive damages for claims of intentional employment discrimination. 42 U.S.C. § 1981a (entitled “Damages in cases of intentional discrimination in employment”). It provides for compensatory and punitive damages for “unlawful intentional discrimination” under § 102 of the ADA (42 U.S.C. § 12112). Id. § 1981a(a)(2). And retaliation is, quintessentially, a form of intentional discrimination. Id. § 12203(a) (“No person shall discriminate against any individual because” of protected activity.) (emphasis added); Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173 (2005) (“Retaliation . . . is another form of intentional [] discrimination . . . .”).

Indeed, if the ADA did not have an explicit prohibition on retaliation, such a prohibition is so essential that it likely would have been inferred. Gomez-Perez v. Potter, 553 U.S. 474, 480-81 (2008) (inferring prohibition on retaliation from ADEA’s prohibition on age discrimination in the federal sector); CBOCS W., Inc. v. Humphries, 553 U.S. 442, 451-52 (2008) (inferring prohibition on retaliation from the prohibition on racial discrimination in 42 U.S.C. § 1981); Jackson, 544 U.S. at 174-76 (inferring prohibition on retaliation from Title IX’s prohibition on sex discrimination); see also Baker v. Windsor Republic Doors, 635 F. Supp. 2d 765, 769-71 (W.D. Tenn. 2009) (inferring prohibition on retaliation from § 12112 of the ADA’s prohibition on disability discrimination; holding compensatory and punitive damages are available for ADA retaliation claims), aff’d on other grounds, 414 F. App’x 764 (6th Cir. 2011). Reading § 1981a and the ADA’s prohibitions on intentional discrimination in light of these decisions further shows that ADA employment-related retaliation claims are a form of intentional discrimination within the scope of § 1981a(a)(2).

Two unpublished opinions from this Court have said that compensatory and punitive damages are unavailable, but this Court should decline to follow them. See Bowles v. Carolina Cargo, Inc., 100 F. App’x 889, 890 (4th Cir. 2004) (per curiam); Rhoads v. FDIC, 94 F. App’x 187, 187 (4th Cir. 2004) (per curiam). In the one-paragraph opinion in Bowles, the panel cited an earlier Seventh Circuit decision, Kramer v. Banc of America Securities, LLC, 355 F.3d 961, 964-66 (7th Cir. 2004), and concluded, without additional analysis, that the argument for damages was “without merit.” 100 F. App’x at 890. The Rhoads panel similarly devoted only a paragraph to the subject, concluding damages were unavailable based on Kramer, without additional discussion. Rhoads, 94 F. App’x at 187. “Unpublished decisions, of course, do not constitute binding precedent in this Circuit,” and this Court has declined to follow an unpublished decision where, as here, the opinion was “sparely reasoned.” Edmonson v. Eagle Nat’l Bank, 922 F.3d 535, 545 n.4 (4th Cir. 2019) (citations omitted); see also Pressley v. Tupperware Long Term Disability Plan, 553 F.3d 334, 339 (4th Cir. 2009) (stating that “[w]e, of course, are not bound by” unpublished precedent, and reaching a holding contrary to two unpublished cases).

Further, Bowles and Rhoads relied exclusively on Kramer, which misinterpreted § 1981a’s lack of an explicit reference to ADA retaliation claims. Kramer held that “the plain language” of § 1981a(a)(2) “permits recovery of compensatory and punitive damages . . . only for those claims listed therein.” 355 F.3d at 965. The Ninth Circuit similarly held compensatory and punitive damages were unavailable in Alvarado v. Cajun Operating Co., 588 F.3d 1261, 1268 (9th Cir. 2009), again because § 1981a(a)(2) did not explicitly list ADA retaliation claims. Both Kramer and Alvarado thus turn on the absence of an explicit reference to ADA retaliation claims in § 1981a(a)(2), but “silence . . . normally creates ambiguity. It does not resolve it.” Barnhart v. Walton, 535 U.S. 212, 218 (2002). And neither Kramer nor Alvarado considered § 1981a’s exclusions; as explained above, those exclusions matter because they show what § 1981a in fact excludes from its scope.[7]

There is yet another reason to discount the absence of an explicit reference to ADA retaliation claims in § 1981a: the ADA’s broader statutory context. Section 503(c) of the ADA provides that the remedies for retaliation are those available under Titles I, II, and III. As discussed, the remedies for employment discrimination under Title I mirror those in Title VII. 42 U.S.C. § 12117(a). The remedies for public services, meanwhile, track § 505 of the Rehabilitation Act, 29 U.S.C. § 794a, and public accommodation claims can only obtain injunctive relief under 42 U.S.C. § 2000a-3. 42 U.S.C. § 12133; id. § 12188. But § 1981a was only intended to provide remedies for intentional employment discrimination claims. Pub. L. 102-166, § 3, 105 Stat. 1071 (1991) (codified at 42 U.S.C. § 1981a note) (“The purposes of this Act [include] – (1) to provide remedies for intentional discrimination and unlawful harassment in the workplace . . . .”). If § 1981a listed the ADA’s prohibition on retaliation, 42 U.S.C. § 12203, it would have expanded the remedies for retaliation claims involving public services and public accommodations as well—which do not involve employment discrimination. Contrary to Kramer and Alvarado, then, the absence of an explicit reference to employment-related ADA retaliation claims in § 1981a does not mean that compensatory and punitive damages are unavailable.

The Alvarado court made several additional attempts to explain why § 1981a did not provide damages for ADA retaliation claims involving employment, but its reasoning was flawed here as well. First, Alvarado quoted a district court decision asserting that reading § 1981a as outlined above would empty the references to sections 12112 and 12112(b)(5) in § 1981(a)(2) “of any meaning.” Alvarado, 588 F.3d at 1268-69 (quoting EEOC v. Faurecia Exhaust Sys., Inc., 601 F. Supp. 2d 971, 975–76 (N.D. Ohio 2008)). That assertion is unfounded. Section 12112(b)(5), for example, is already included in § 12112. By Alvarado’s logic, that reference to § 12112(b)(5) is already superfluous. In any event, Congress need not use the same method to accomplish its objective every time, so its explicit references to § 12112 and § 12112(b)(5) do not negate the statutory linkage described above.

Alvarado next noted that the Supreme Court’s decision in Gomez-Perez did not address remedies, 588 F.3d at 1269, but Gomez-Perez also did not hold that the remedies for retaliation claims were—or should be—different. See generally Gomez-Perez, 553 U.S. 474. Alvarado also suggested Congress may have provided different remedies because substantive discrimination claims involve individuals with disabilities. 588 F.3d at 1269. But many plaintiffs in ADA retaliation cases do have disabilities—and plaintiffs in other ADA cases often do not. See, e.g., Bates v. Dura Auto. Sys., Inc., 767 F.3d 566, 582 (6th Cir. 2014) (non-disabled employees can receive damages for impermissible medical examinations and inquiries); Reiter v. Maxi-Aids, Inc., No. 14 CV 3712, 2018 WL 557864, at *5 (E.D.N.Y. Jan. 19, 2018) (punitive damages available for associational discrimination under the ADA). Alvarado added that limiting damages for ADA retaliation was “unsurprising” because those claims “ha[d] been historically redressed solely by equitable relief.” 588 F.3d at 1268. But that was also true for discrimination claims before the 1991 Civil Rights Act added § 1981a.

Reading § 1981a to exclude compensatory and punitive damages for employment-related ADA retaliation claims also leads to illogical results. The ADA protects employees from both disability-based discrimination and retaliation, and antiretaliation provisions are essential for securing the right to be free from discrimination. Those provisions “prevent[] an employer from interfering (through retaliation) with an employee’s efforts to secure or advance enforcement of the [antidiscrimination law’s] basic guarantees.” Burlington Northern, 548 U.S. at 63. To do so, “antiretaliation provision[s] extend[] beyond workplace-related or employment-related retaliatory acts and harm.” Id. at 67. That “broad protection from retaliation helps ensure the cooperation upon which accomplishment of the [antidiscrimination law’s] primary objective depends.” Id.

Barring the recovery of compensatory and punitive damages for ADA retaliation claims involving employment would undermine that core purpose. It would also leave entire categories of illegal retaliation without an effective remedy. See Shannon v. Sheahan, No. 01C252, 2005 WL 936601, at *3 (N.D. Ill. Mar. 24, 2005) (summary judgment in an ADA retaliation claim appears appropriate because no damages or equitable relief were available). In fact, it would provide no recovery for adverse acts that Burlington Northern held may well dissuade a reasonable worker from engaging in protected activity. See 548 U.S. at 71-72 (jury could find unpaid suspension was adverse action even where employee had been reinstated with backpay).

CONCLUSION

For these reasons, we urge this Court to hold that the district court applied incorrect legal standards in assessing Israelitt’s disability discrimination and retaliation claims and in holding compensatory and punitive damages were unavailable.

Respectfully submitted,

GWENDOLYN YOUNG REAMS

Acting General Counsel

JENNIfer s. goldstein

Associate General Counsel

Anne Noel Occhialino

Acting Assistant General Counsel

/s/ James Driscoll-MacEachron

JAmes driscoll-maceachron

Attorney, Appellate Litigation Services

Office of General Counsel

Equal Employment Opportunity Commission

131 M St. NE, Fifth Floor

Washington, DC 20507

(602) 661-0014

james.driscoll-maceachron@eeoc.gov

July 21, 2022

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limit of Federal Rules of Appellate Procedure 29(a)(5) and 32(a)(7)(B)(i) because it contains 6,439 words, excluding the parts of the brief exempted by Federal Rule of Appellate Procedure 32(f). This brief also complies with the typeface and type-style requirements of Federal Rule of Appellate Procedure 32(a)(5)-(6) because it was prepared using Microsoft Word for Office 365 ProPlus in Times New Roman 14-point font, a proportionally spaced typeface.

/s/ James Driscoll-MacEachron

JAMES DRISCOLL-MACEACHRON

[1] The EEOC takes no position on any other issue raised in this appeal.

[2] Israelitt originally named HP and related entities as defendants, but later stipulated to dismiss the other entities and substitute Enterprise for HP. R.11. We refer to HP when describing Israelitt’s employment and to Enterprise when describing the litigation.

[3] The district court did not analyze the increased workload as an adverse action, but it did consider it as part of the causal chain leading toward termination. JA46-48.

[4] It appears that this Court first applied the “significant detrimental effect” standard in Boone v. Goldin, 178 F.3d 253, 256 (4th Cir. 1999), and then applied it in other reassignment cases such as Holland v. Washington Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007), and James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 376 (4th Cir. 2004).

[5] Although Adams referred to an “adverse employment action,” 789 F.3d at 431 (emphasis added), this Court has recognized that only an “adverse action” is required because Burlington Northern “expressly rejected” the adverse employment action requirement. Strothers v. City of Laurel, 895 F.3d 317, 327 n.3 (4th Cir. 2018); Laird, 978 F.3d at 893 n.6.

[6] Elsewhere, the Fourth Circuit applied a different adverse action standard from substantive discrimination claims to retaliation claims. Compare Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011) (quoting Burlington Indus., Inc., v. Ellerth, 524 U.S. 742, 761 (1998), to require “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits”), with Burlington Northern, 548 U.S. at 65 (“Ellerth did not discuss the scope of the general antidiscrimination provision And Ellerth did not mention Title VII’s antiretaliation provision at all.”) (citation omitted).

[7] The Third Circuit recently relied on Alvarado and Kramer to hold compensatory and punitive damages were unavailable for a Rehabilitation Act retaliation claim, but, like Bowles and Rhoads, did so in only one sentence of an unpublished opinion. Tucker v. Shulkin, C.A. Nos. 20-1317 & 20-1318, 2020 WL 4664805, at *1 (3d Cir. July 24, 2020).