No.06-5486 IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _________________________ PATRICK S. BRADY, Plaintiff-Appellee, v. WAL-MART STORES, INC., & YEM HUNG CHIN, Defendants-Appellants. ____________________________________________________ On Appeal from the United States District Court for the Eastern District of New York ____________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT ____________________________________________________ RONALD S. COOPER General Counsel EQUAL EMPLOYMENT OPPORTUNITY LORRAINE C. DAVIS COMMISSION Acting Associate General Counsel Office of General Counsel 1801 L Street, N.W., 7th Floor VINCENT J. BLACKWOOD Washington, DC 20507 Assistant General Counsel 202-663-4721 BARBARA L. SLOAN Attorney TABLE OF CONTENTS TABLE OF AUTHORITIES ii STATEMENT OF INTEREST 1 STATEMENT OF THE ISSUES 2 STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings 2 2. Statement of Facts 3 3. Jury Verdict and Rulings on Post-Judgment Motions 8 ARGUMENT 9 I. THE JURY REASONABLY FOUND THAT PATRICK BRADY SUFFERED AN ADVERSE EMPLOYMENT ACTION WHEN HE WAS TRANSFERRED FROM HIS POSITION AS A PHARMACIST ASSISTANT TO A JOB COLLECTING SHOPPING CARTS AND DEBRIS IN THE WAL-MART PARKING LOT. 10 II. THE JURY REASONABLY FOUND THAT WAL-MART IS LIABLE FOR PUNITIVE DAMAGES. 18 CONCLUSION 25 CERTIFICATE OF COMPLIANCE AND VIRUS SCAN 26 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Page(s) Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975).................................................... 17 Bowman v. Shawnee State University, 220 F.3d 456 (6th Cir. 2000)............................................. 13-14 Cross v. NYC Transit Authority, 417 F.3d 241 (2d Cir. 2005)............................................ 20 De la Cruz v. NYC Human Resources Admin. Dep't of Social Servs., 82 F.3d 16 (2d Cir. 1996) ......................................... 10, 12 EEOC v. Wal-Mart Stores, 156 F.3d 989 (9th Cir. 1998)........................................... 20 Ezell v. Potter, 400 F.3d 1041 (7th Cir. 2005)......................................... 18 Farias v. Instructional Systems, 259 F.3d 91 (2d Cir. 2001)............................................ 19 Galabya v. NYC Board of Education, 202 F.3d 636 (2d Cir. 2000)............................................ 11-12 Jacques v. DiMarzio, Inc., 386 F.3d 192 (2d Cir. 2004)........................................... 11 Keeton v. Flying J, 429 F.3d 259 (6th Cir. 2005), cert. denied, 127 S. Ct. 109 (2006).................................... 14 Kolstad v. American Dental Ass'n, 527 U.S. 526 (1999)..................................................... 19-20 Lovejoy-Wilson v. NOCO Motor Fuels, 263 F.3d 208 (2d Cir. 2001) ...................................... 11, 12, 15-16 Luciano v. Olsten Corp., 110 F.3d 210 (2d Cir. 1997)............................................. 23-24 Lumhoo v. Home Depot USA, 229 F. Supp. 2d 121 (E.D.N.Y. 2002) ................................. 15-16 McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995).................................................. 17 Merriweather v. Family Dollar Stores, 103 F.3d 576 (7th Cir. 1996).......................................... 20 Patrolmen's Benevolent Association v. City of New York, 310 F.3d 43 (2d Cir. 2002).............................................. 10, 12 Richardson v. New York State Dep't of Correctional Servs, 180 F.3d 426 (2d Cir. 1999)............................................ 11, 12 Rodriguez v. Board of Education, 620 F.2d 362 (2d Cir. 1980)........................................... 12 Reeves v. Sanderson Plumbing Products, 530 U.S. 133 (2000).................................................. 21 Sanders v. NYC Human Resources Administration, 361 F.3d 749 (2d Cir. 2004) ........................................... 9-10, 23 Schiano v. Quality Payroll Systems, 445 F.3d 597 (2d Cir. 2006).......................................... 13 Ticali v. Roman Catholic Diocese of Brooklyn, 41 F. Supp. 2d 249 (E.D.N.Y.), aff'd without published opinion, 201 F.3d 432 (2d Cir. Dec. 13, 1999)................................. 14 United States v. Gilbert, 668 F.2d 94 (2d Cir. 1981)............................................. 22 Washington v. County of Rockland, 211 F. Supp. 2d 507 (S.D.N.Y. 2002), 373 F.3d 310 (2d Cir. 2004)............................................. 15 Zimmermann v. Associates First Capital Corp., 251 F.3d 376 (2d Cir. 2001)............................................. 19 STATUTES The Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq................................................... 17, 20 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq ............................................. 17, 18-19 The Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.............................................. passim 42 U.S.C. § 12101(b)(1)............................................. 17 42 U.S.C. § 12111(8)................................................ 11 42 U.S.C. § 12112(a)............................................... 11 42 U.S.C. § 1981a(b)(1) ................................................... 19 IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _________________________ No. 06-5486 _________________________ PATRICK S. BRADY, Plaintiff-Appellee, v. WAL-MART STORES, INC., & YEM HUNG CHIN, Defendants-Appellants. ____________________________________________________ On Appeal from the United States District Court for the Eastern District of New York ____________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT ____________________________________________________ STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency charged by Congress with interpreting and enforcing the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. ("ADA"), and other federal employment discrimination laws. In this case, the jury found that defendant violated the ADA by transferring plaintiff, because of his disability, from a pharmacy assistant position to a job collecting shopping carts and garbage in the parking lot. Defendant has appealed the jury verdict, arguing inter alia that, as a matter of law, the transfer cannot be considered an "adverse employment action." The term "adverse employment action" applies not only to the ADA but to all federal employment discrimination statutes; the correct interpretation of the term is thus of great importance to the Commission's enforcement activities. Similarly, defendant's challenges to the punitive damage award, if accepted by this Court, could adversely affect the evidentiary standards for such awards. We therefore offer our views to the Court. STATEMENT OF THE ISSUES<1> 1. Whether the jury reasonably found that plaintiff's transfer from pharmacy assistant to collecting shopping carts and debris in the parking lot was an "adverse employment action" within the meaning of federal employment discrimination law. 2. Whether, based on the evidence, the jury reasonably found that defendant acted with malice or reckless indifference to plaintiff's federally protected rights for purposes of awarding punitive damages. STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings This is an appeal from a final judgment following a jury verdict for plaintiff. In August 2003, plaintiff brought suit under the ADA and state law alleging among other things that, because of his disability, he was transferred from an entry-level position in defendant's pharmacy to a job collecting shopping carts and debris in the parking lot. District court docket number ("R.")1. The case was tried to a jury over four days in February 2005. R.74-79. On February 23, 2005, the jury returned a verdict for plaintiff on most, though not all, of his claims and awarded compensatory and punitive damages as well as other monetary relief. R.79; Joint Appendix pages A767-72.<2> The district court later denied defendant's motion for a new trial on compensatory damages on condition that plaintiff accept a remittitur, which he did. R.170, A986; R.171, A1018 (remittitur letter). The court also reduced the punitive damages to the ADA's $300,000 cap and granted defendant's motion to strike the backpay and frontpay awards. R.111; A821-32. Wal-Mart appealed. R.172. 2. Statement of Facts Patrick Brady has cerebral palsy. A285, Trial Transcript page ("Tr.")109. As a child, he was teased about his appearance (A323, Tr.260), and, despite repeated surgeries on his legs, feet and eyes, he still walks with a limp, speaks softly and slowly, and moves, reads, thinks and learns slowly. A286, Tr.110 (Brady); A355-56, Tr.350-52 (Mrs. Brady); see also A344, Tr.304-06 (Mr. Brady) (describing, e.g., Brady's difficulty getting around, due to poor sense of direction and trouble reading street signs quickly). Although Wal-Mart's witnesses "with remarkable unanimity" insisted that "it had never occurred to them that he might be disabled," the district court opined that the jury, seeing Brady in court, could easily have rejected this testimony as incredible. A926; see also A944 ("record was more than sufficient" for jury to find that Brady's disability was "obvious" to Wal-Mart personnel); A828 ("frankly finding several of Wal-Mart's witnesses wholly incredible in attesting to ignorance of Brady's disability"). For two years during high school, Brady worked part-time at the local pharmacy, taking in and handing out prescriptions, running the cash register and stocking shelves. A287, Tr.115-16. After graduation and before starting classes at the community college, he applied for a part-time entry-level position at the nearby Wal-Mart. A288, Tr.118. In early August, he was hired as a pharmacist assistant. A298-99, Tr.160-63. The pharmacy at Wal-Mart is separate from the rest of the store, with its own budget, chain of command, and vest bearing the words "Wal- Mart Rx Department." A436, Tr.671. The pharmacy manager, Yem Chin, was unavailable when Brady was interviewed, however, and met him only briefly when he stopped by for a schedule. A298, Tr.160-61. Thus, her first significant interaction with Brady was on his first day of work. According to Brady, on that day, a Sunday, Chin seemed to take an instant dislike to him. A339, Tr.284. He testified that he did not have trouble with the work, which was substantially similar to what he had been doing in his previous job. A299-300, Tr.165-67. Nevertheless, all day long, Chin hovered over him, telling him what to do, implying to him that she thought he was too slow. A300, Tr.166-67. At the end of the day, when Brady asked for his schedule for the upcoming week, Chin told him she would get back to him. She did not. A300, Tr.168. Finally, on Thursday, Brady went to the store and asked Chin for a schedule. In response, Chin told him, falsely, that he had been hired by mistake -- she had intended to hire a pharmacy technician -- and asked him if he would mind if she had him transferred to another job. A300-01, Tr.169-70. Brady said he would not mind. In the interim, he worked two more days without incident in the pharmacy. A301, Tr.170. The following week, Brady again waited in vain to hear from Chin about his schedule. A301, Tr.172. When he finally caught up with her on Friday, she sent him to personnel for reassignment, but when he got there the personnel manager seemed surprised to see him, asking him to wait. A301, Tr.172-73. When she returned, he was told that he could no longer work in the pharmacy and that the only available position consistent with his availability was a job collecting shopping carts and debris in the parking lot. A301, Tr.173. That evening, Brady complained to his parents about the transfer, which he viewed as a demotion -- the job required no "skill or knowledge" and was physically more difficult. A302, Tr.174-75. The next morning, while Brady was at work in the parking lot, his father complained to the store manager, James Bowen, adding that he hoped the transfer had nothing to do with Brady's disability. He was assured that it did not and that Bowen would take care of the situation. A346, Tr.314. According to Brady's father, Bowen also said that Chin had requested the transfer because Brady was not "fit" for the pharmacy and had warned that, if he were sent back to the pharmacy, it would be Bowen's fault if someone sued. A347, Tr.316. Sometime later that morning, Bowen called Brady in from the parking lot and confirmed that he did not want that job. Bowen then explained that Chin did not think him "fit" for the pharmacy job (A303, Tr.178; A339, Tr.284), and reassigned him to a job stocking shelves in the food department. A303, Tr.178. Then, according to Brady, Bowen simply walked him to the department and left him there to fend for himself. A303, Tr.179. Although he had been working outside in the rain, he was not given a Wal-Mart smock or identification. A303, Tr.179. At day's end, Brady was given a schedule that had him finishing late at night, after the time that he had indicated he could work during the school year. A303, Tr.180. Brady viewed this scheduling conflict as further evidence that Wal- Mart did not want him there because of his disability. A303, Tr.181. He therefore called the store and quit a day or two later. Id. Brady brought suit alleging inter alia that Wal-Mart violated the ADA by transferring him to the parking lot because of his disability. R.1. In its defense at trial, Wal-Mart's witnesses uniformly testified that they were unaware that Brady had a disability. See A541, Tr.541 (Chin) (limps but is "otherwise fine"); see also A369, Tr.406-07 (hiring pharmacist); A439, Tr.681-82 (assistant manager); A422, Tr.613 (Bowen); A452, Tr.734 (coworker); cf. Wal-Mart Brief at 26; A944 (district court decision); A828 (same). In addition, Wal-Mart took the position that Brady was transferred based on his performance but that all entry-level positions including those in the pharmacy and parking lot were equivalent. Wal-Mart Brief at 12-17; see also A448, Tr.716 (same "wages, benefits and status"). Regarding Brady's performance, Chin testified that she had decided to get rid of Brady because the one day she had worked with him, he was "absolutely awful." See, e.g., A404, Tr.540. He was extremely slow, could not remember customers' names, and had trouble finding prescriptions in the bins. A403, Tr.537- 38, A405, Tr.544; see also A404, Tr.540 (noting that she was "completely scared of what could happen"). Indeed, she testified, on several occasions, she had had to intervene to stop him from giving out the wrong prescription. A410, Tr.566-67; A403, Tr.537-38 (describing specific incident). Brady denied this (A287, Tr.116- 17; A300, Tr.167-68), and witnesses from his prior job testified that he had never made such a mistake in the two years he had worked there. A280-81, Tr.89-90; A283-84, Tr.101-02. Chin also testified that she told everyone what a "terrible time" Brady was having with prescriptions but admitted that he had been permitted to work in the pharmacy, handing out prescriptions, for two more days. A410, Tr.567. Bowen denied commenting about Chin to Brady's father, stating that he first spoke to Chin about Brady after that discussion. A422, Tr.615. He also indicated that he treats parental complaints very seriously. A436, Tr.673. Bowen further testified that he spent 30-45 minutes orienting Brady in the food department (A421-23, Tr.610-17) although he did not remember who Brady was before his deposition. A434, Tr.662; A422, Tr.613 (no clear memory of him even at start of trial). 3. Jury Verdict and Rulings on Post-Judgment Motions After a four-day trial, the jury found inter alia that plaintiff was disabled and suffered an adverse employment action when he was transferred to the parking lot. A767-772(verdict). For these and other violations, the jury awarded plaintiff $2.5 million in compensatory damages and $5 million in punitive damages. Id. The district court then reduced the punitive damages to the ADA's $300,000 cap but noted that the award "in no meaningful sense" was a "punishment" since "it took Wal-Mart only 37 seconds to achieve sales" in that sum in 2004. A827-28. In addition, with Brady's agreement, the court remitted the compensatory damages to $600,000. A986 (also allocating compensatory damages to state claims); A1018 (plaintiff's letter). ARGUMENT In this appeal, Wal-Mart invites the Court to hold, as a matter of law, that it did not violate the ADA by transferring Brady, because of his disability, from a position in the pharmacy to a job collecting shopping carts and debris in the parking lot and should not be liable for punitive damages. Because the case was fully tried, however, the appeal can succeed only if Wal-Mart demonstrates either "such a complete absence of evidence supporting the verdict that the jury's finding could only have been the result of sheer surmise and conjecture" or "such an overwhelming amount of evidence in [its] favor that fair-minded jurors could not reasonably arrive at a verdict against [the company]." See Sanders v. NYC Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004) (citation omitted). That Wal-Mart did not and cannot do. As discussed below, the district court applied the proper legal standards, and ample evidence supports the jury's findings on both issues. I. THE JURY REASONABLY FOUND THAT PATRICK BRADY SUFFERED AN ADVERSE EMPLOYMENT ACTION WHEN HE WAS TRANSFERRED FROM HIS POSITION AS A PHARMACIST ASSISTANT TO A JOB COLLECTING SHOPPING CARTS AND DEBRIS IN THE WAL-MART PARKING LOT. Wal-Mart argues that it is entitled to judgment as a matter of law on Brady's claim that he suffered an adverse employment action when, because of his disability, he was transferred out of the pharmacy into the parking lot to collect shopping carts and garbage. In this Circuit, a transfer may constitute an "adverse employment action" when it affects a plaintiff's terms or conditions of employment "in a negative way." De la Cruz v. NYC Human Res. Admin. Dep't of Soc. Servs., 82 F.3d 16, 21 (2d Cir. 1996); see also Patrolmen's Benevolent Ass'n v. City of New York, 310 F.3d 43, 51 (2d Cir. 2002) ("materially negative way"). Here, Brady proffered sufficient evidence to support a finding that, in fact, the two jobs are not fungible and that the terms or conditions of his employment were materially negatively affected by the transfer. The district court therefore reasonably sent this issue to the jury and, when the jury found for plaintiff on the issue, properly denied Wal-Mart's motion for post-judgment relief. Under the ADA, an employer such as Wal-Mart may not "discriminate against a qualified individual with a disability" because of that individual's disability in job assignments as well as other terms or conditions of employment. See 42 U.S.C. § 12112(a). To make out a claim under the ADA, a plaintiff such as Brady must show that he is a "qualified individual with a disability" (defined in 42 U.S.C. § 12111(8)) and suffered an "adverse employment action" because of his disability. See, e.g., Jacques v. DiMarzio, Inc., 386 F.3d 192, 199 (2d Cir. 2004). In this Circuit, a "plaintiff may suffer an 'adverse employment action' if [he] endures a materially adverse change in the terms and conditions of employment." Richardson v. New York State Dep't of Corr. Servs., 180 F.3d 426, 466 (2d Cir. 1999) (citation omitted). "Adverse employment action" is defined "broadly" (Lovejoy-Wilson v. NOCO Motor Fuels, 263 F.3d 208, 223 (2d Cir. 2001)), and there are "no bright-line rules." Richardson, 180 F.3d at 466. The term includes not only discharge, demotion, and reprimand (id.), but also "other indices unique to a particular situation" such as a less distinguished title, significantly diminished material responsibilities (Galabya v. NYC Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000)), negative evaluation letters, and a brief suspension without pay even if the pay is later reimbursed. NOCO Motor Fuels, 202 F.3d at 223-24. As noted above, in transfer cases such as this one, a key question is whether the transfer altered the terms or conditions of plaintiff's employment "in a negative way." De la Cruz, 82 F.3d at 21; see also Patrolmen's Benevolent Ass'n, 310 F.3d at 51 ("materially negative way"). Thus, this Court has held that transferring an art teacher from junior high to primary school was actionable because the teacher had developed special expertise with junior high school students. Rodriguez v. Board of Educ., 620 F.2d 362 (2d Cir. 1980). Also actionable was a caseworker's transfer, with no change in pay, from the Adoption Unit to the Foster Care Unit, which the caseworker described as less prestigious and offering little opportunity for professional growth. De la Cruz, 82 F.3d at 21-22. See also Richardson, 180 F.3d at 444 (transfer of prison clerical worker to clerical job that brought her into contact with inmates). Applying that standard here, the jury reasonably found that Brady's transfer from the pharmacy to the parking lot was actionable. The pharmacy position was indoors, in a department separate from the rest of the store and offered the possibility of promotion to pharmacy technician. A299, Tr.163; A436, Tr.671. In addition, in contrast to collecting shopping carts and garbage, the job was mentally more challenging and better suited to Brady's physical limitations (A404, Tr.540); Brady also had experience working in a comparable position at the neighborhood pharmacy. A287, Tr.115-16. While Wal-Mart's personnel manager described the transfer as lateral and opined that the two jobs were of equal "status" (A448, Tr.716), given the contrary evidence, the jury was not compelled to agree. Moreover, the jury's finding was reasonable even though Brady's tenure in the parking lot was brief. As noted above, this is a case-by-case determination, and several factors support the jury's finding in this case. First, the jury could consider the fact that it was merely a fortuity that Brady's tenure in the parking lot was brief. Wal-Mart did not attempt to correct the discrimination on its own but instead moved Brady only after his father complained, mentioning disability discrimination. Bowen stated that he treats parental complaints very seriously; the jury could infer that, but for his father's intervention, Brady would have stayed in the parking lot permanently. Nor is this a case where the employer reversed its decision before the plaintiff's position changed substantially because of discrimination. Compare, e.g., Schiano v. Quality Payroll Sys., 445 F.3d 597, 609 (2d Cir. 2006) (after angrily telling plaintiff she would henceforth report to someone else, supervisor apologized and recanted the next day); see also Bowman v. Shawnee State Univ., 220 F.3d 456, 462 (6th Cir. 2000) (cited by Wal-Mart) (harassing supervisor removed one of plaintiff's job duties with no loss of pay but employer promptly reinstated duty and removed references to action from plaintiff's file); Ticali v. Roman Catholic Diocese of Brooklyn, 41 F. Supp. 2d 249, 257-58 (E.D.N.Y.) (cited by Wal-Mart) (no adverse action where plaintiff "never changed her position" on receiving letter terminating her contract and termination was promptly retracted), aff'd without published opinion, 201 F.3d 432 (2d Cir. Dec. 13, 1999). Rather, Brady was actually permanently removed from the pharmacy and required to work outdoors in the parking lot. Furthermore, in the above-cited cases, the employer actually reversed the discriminatory decision, returning plaintiff to his former position. Here, in contrast, Brady was not sent back to the pharmacy but rather was transferred to an entirely different job after his father complained. Compare Keeton v. Flying J, 429 F.3d 259, 264-66 (6th Cir. 2005) (upholding jury finding of adverse action where, although discriminatory discharge decision was reversed, plaintiff was transferred laterally to a store at some distance from his home and, due to personal circumstances, was forced to maintain two residences as long as he kept the job), cert. denied, 127 S. Ct. 109 (2006). In urging reversal, Wal-Mart relies heavily on Lumhoo v. Home Depot USA, 229 F. Supp. 2d 121 (E.D.N.Y. 2002). See Wal-Mart Brief at 14-17. There, the district court granted summary judgment to the employer after the plaintiff, who had been fired in retaliation for complaining about racial slurs and other disparate treatment, was "reinstated" with backpay three weeks later, albeit at a different store and job. Citing other lower court decisions, the Lumhoo court reasoned that the plaintiff had suffered no adverse employment action because "defendant's investigation of [his] discrimination claims rendered [the] termination a mediate action," he was reinstated with backpay, and all references to the events were removed from his personnel file. Id. at 139. Lumhoo is poor authority for Wal-Mart's position because the decision is inconsistent with controlling circuit precedent.<3> Specifically, in NOCO Motor Fuels, this Court held that even a one-week suspension without pay was actionable despite the fact that the plaintiff's lost pay was later reimbursed. See 263 F.3d at 223-24. Furthermore, as the district court noted, the case can be distinguished on its facts. See A930 (noting that Brady's transfer was not a "mediate action," he was not sent back to the pharmacy, and references to the action were not removed from his file). Wal-Mart also argues that its approach -- absolving an employer of liability for a discriminatory transfer if, after the employee complains, he is moved to yet another available position -- would further what it calls "a goal" of the ADA, that is, "to encourage an interactive process between employers and their workers." Wal-Mart Brief at 17 (citing NOCO Motor Fuel, 263 F.3d at 218). This argument is flawed for two reasons. First, as is clear even from the case Wal-Mart cites as its authority, "interactive process" is not a "goal" at all but rather a term of art that describes the process whereby employers and disabled individuals "work together to assess whether an employee's disability can be reasonably accommodated." NOCO Motor Fuel, 263 F.3d at 218. It is designed to prevent discriminatory conduct, not to insulate employers from liability once such conduct has occurred.<4> Second, the "central statutory purposes" of the ADA, like all federal employment discrimination laws, are to "eradicat[e] discrimination throughout the economy and mak[e] persons whole for injuries suffered through past discrimination." See Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975) (Title VII); McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 358 (1995) ("Deterrence is one object of these statutes. Compensation for injuries caused by the prohibited discrimination is another.") (Title VII, ADEA); accord 42 U.S.C. § 12101(b)(1) ("to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities") (ADA). "Congress designed the remedial measures in these statutes to serve as a 'spur or catalyst' to cause employers 'to self-examine and to self-evaluate their employment practices and to endeavor to eliminate, so far as possible, the last vestiges' of discrimination." McKennon, 513 U.S. at 358 (quoting Albemarle Paper Co., 422 U.S. at 417-18). Under Wal-Mart's approach, however, employers would get one free bite at the apple. They could discriminate against employees, with impunity, as long as they took some steps to improve -- though not necessarily correct -- the situation if the individual (or his father) complained about the discrimination. That approach would further neither purpose of the statute. Instead, in accordance with the statutory purposes, employers must be held liable for their discriminatory acts. While the duration of the discriminatory action may affect relief -- as is reflected here in the district court's remittitur of the compensatory damages -- it should not preclude a finding of adverse action. See, e.g., Ezell v. Potter, 400 F.3d 1041, 1049 (7th Cir. 2005) (adverse action where Removal Letter, indicating intent to terminate plaintiff, was withdrawn through grievance process before plaintiff was actually terminated). Accordingly, Wal-Mart's arguments for reversal should not prevail. Because, based on the evidence, the jury reasonably found that transferring Brady from the pharmacy to the parking lot was an "adverse employment action," the district court properly denied Wal-Mart's motion for judgment as a matter of law, and the judgment should be affirmed. II. THE JURY REASONABLY FOUND THAT WAL-MART IS LIABLE FOR PUNITIVE DAMAGES. Wal-Mart also challenges the jury's finding that its conduct justified an award of punitive damages. These arguments have no merit and should be rejected. As under Title VII, punitive damages are available in cases under the ADA where the plaintiff proves that the defendant "engaged in a discriminatory practice . . . with malice or with reckless indifference to the federally protected rights of an aggrieved individual." 42 U.S.C. § 1981a(b)(1). "The terms 'malice' and 'reckless indifference' pertain to the employer's knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination." Kolstad v. American Dental Ass'n, 527 U.S. 526, 535 (1999). Thus, for example, an employer may be subject to punitive damages if it discriminates "in the face of a perceived risk that its actions will violate federal law." Id. at 536; accord Zimmermann v. Associates First Capital Corp., 251 F.3d 376, 385 (2d Cir. 2001). In any event, as Wal-Mart argues, a "positive element of conscious wrongdoing" is ordinarily required.<5> Wal-Mart Brief at 43 (citing Farias v. Instructional Sys., 259 F.3d 91, 101 (2d Cir. 2001) (citation omitted)) Applying that standard to the evidence that it heard at trial, the jury here found that Wal-Mart should be liable in punitive damages for its treatment of Patrick Brady. Wal-Mart challenges that finding, arguing there is no evidence that it had the necessary mental state. Wal-Mart Brief at 43-44. In fact, however, the jury's findings on this issue are entirely reasonable. Significantly, an employer such as Wal-Mart may be subject to punitive damages in Title VII or ADA cases where there is evidence it has engaged in a cover-up following alleged discrimination. Such a cover-up suggests that the employer not only discriminated but was aware enough of its wrongdoing to attempt to hide its tracks. See, e.g., EEOC v. Wal-Mart Stores, 156 F.3d 989, 992- 93 (9th Cir. 1998); Merriweather v. Family Dollar Stores, 103 F.3d 576, 582 (7th Cir. 1996). This Court recently reached an analogous conclusion in upholding a jury finding of willfulness under the Age Discrimination in Employment Act ("ADEA"). See Cross v. NYC Transit Auth., 417 F.3d 241, 253 (2d Cir. 2005). The Cross Court reasoned, "The creation of a calculated subterfuge to support an adverse employment action supports an inference that the employer knew or recklessly ignored the fact that their real reason for demoting the plaintiffs -- age - - was unlawful." Cf. Kolstad, 527 U.S. at 537 (drawing on ADEA willfulness caselaw in articulating intent standard for punitive damages). Similarly, here, the jury easily could have found that Wal-Mart displayed the requisite mental state by first discriminating against the plaintiff and then engaging in a cover-up of its conduct. The jury clearly disbelieved Chin's testimony that her decision to get rid of Brady was based solely on his "absolutely awful" performance. Although she testified, for example, that she even had to stop him from giving out the wrong prescriptions, there was ample evidence to the contrary. Brady denied it, his previous boss testified that Brady had never had such problems in the two years he worked at the neighborhood pharmacy, and Wal-Mart did not argue that the other pharmacists Brady worked with supported Chin's concerns. See, e.g., A287, Tr.116-17; A300, Tr.167-68. The jury thus was free to -- and did - - find that Brady's disability played a major role in his removal. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 147 (2000) ("trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose"). Furthermore, and importantly, this is not a garden-variety pretext case. In addition to its disbelief of Chin, the jury heard a string of Wal-Mart witnesses including Chin and Bowen uniformly testify that it had never crossed their minds that Brady might be disabled. Yet, at the same time, the jury itself found that Brady is disabled and, observing him in court, could reasonably have found that his disability was likewise "obvious" to Wal-Mart personnel. See A944 ("record was more than sufficient" for jury to find that Brady's disability was "obvious" to Wal- Mart personnel). Measuring Wal-Mart's witnesses' testimony against its own observations, the jury reasonably could have found this "remarkable unanimity" (A926) more than slightly suspect. Indeed, the jury could have viewed this "remarkable unanimity" as evidence that Wal-Mart manufactured this story to hide the fact that its conduct was unlawful. Such evidence would support a finding that Wal-Mart, at a minimum, acted with reckless indifference to Brady's federally protected rights so as to justify an award of punitive damages. As the district court explained, "once the jury found the existence of discriminatory animus, it rationally could have viewed as particularly egregious the attempt by Wal-Mart witnesses to avert that finding through repeated denials of even knowing that Brady was disabled." A943. On a related point, Wal-Mart also challenges the size of the punitive damage award, arguing that it demonstrates that the jury was inflamed by a redacted version of the nationwide consent decree resolving the Commission's disability discrimination suits against Wal-Mart.<6> Wal-Mart Brief at 39. In fact, however, the amount of the award may simply mean that the jury was following its instructions. Under those instructions, the award was not unreasonable. The jury was instructed that the "purpose of an award of punitive damages is first to punish a wrongdoer for misconduct and second to warn others against doing the same." A562-63, Tr.994-95. Then, if it found that some award was appropriate, the jury was further instructed to consider various factors including: "What amount is needed, considering defendant's financial condition, to prevent repetition." A563, Tr.995. Consistent with these instructions, the jury reasonably could have found that, given Wal-Mart's enormous size, nothing less than $5 million would suffice to punish and deter the conduct. Cf. A827-28 (capped award "in no meaningful sense" is a punishment in light of Wal-Mart's $256 billion in total net sales in 2004). Finally, Wal-Mart appears to argue that its conduct was not bad enough to support the capped award. See Wal-Mart Brief at 43-44. However, this Court has expressly rejected an argument that damages in the amount of the cap are reserved for only the most egregious cases. See Luciano v. Olsten Corp., 110 F.3d 210, 221 (2d Cir. 1997) (cap "is not an endpoint of a scale according to which judges might recalibrate jury awards"). Luciano holds that an award should be reduced below the cap only if the amount "would shock the judicial conscience" as where, for example, it would "result in financial ruin of a defendant" or "constitute a disproportionately large percentage of a defendant's net worth." Id. Clearly, an award in the amount of the cap raises no such concerns in this case. Accordingly, we urge this Court to decline Wal-Mart's invitation to overturn the findings of the jurors who observed the witnesses, heard the testimony and examined the other evidence. See Sanders, 361 F.3d at 749 (noting judges' "very limited role in controlling jury fact-finding"). Because the jury's findings are well supported by the record and in accordance with applicable legal standards, the judgment on this issue should be affirmed. CONCLUSION For the foregoing reasons, the judgment below should be affirmed. Respectfully submitted, RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel _________________________________ BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., 7th Floor Washington, DC 20507 202-663-4721 CERTIFICATE OF COMPLIANCE AND VIRUS SCAN This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 5298 words from the Statement of Interest through the Conclusion, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Work 2003 with Times New Roman 14-point font. I certify that a PDF version of this brief has been scanned for viruses, using the Symantec AntiVirus, version 9.0.3, and that no virus has been detected. __________________________________ Barbara L. Sloan Attorney for Equal Employment Opportunity Commission Dated:____________________________ CERTIFICATE OF SERVICE I certify that two copies of the foregoing Brief of the Equal Employment Opportunity Commission As Amicus Curiae, along with a virus-scanned PDF version of the brief, were sent April 18, 2007, by first-class mail, postage prepaid, to: Joel L. Finger I. Michael Kessel THELEN REID BROWN RAYSMAN & STEINER LLP 900 Third Avenue New York, NY James F. Bennett Megan S. Heinsz DOWD BENNETT LLP 7733 Forsyth Blvd, Suite 1410 St. Louis, MO 63105 Douglas H. Wigdor THOMPSON, WIGDOR & GILLY, LLP 350 Fifth Avenue New York, NY 10118 A courtesy copy of the brief in PDF format was also emailed to Joel L. Finger and Douglas H. Wigdor on April 18, 2007. _________________________________ Barbara L. Sloan *********************************************************************** <> <1> The Commission takes no position on any of the other largely factual issues in this case. <2> Hereinafter, citations to the Joint Appendix are simply to the relevant pages, which all begin with "A". <3> The same is true for Washington v. County of Rockland, 211 F. Supp. 2d 507, 514 (S.D.N.Y. 2002). See Wal-Mart Brief at 15-16. There, plaintiffs alleged they were suspended without pay pending disciplinary proceedings initiated because of their protected speech. The district court found no adverse action, reasoning that the charges were eventually dismissed and "any loss of pay suffered by plaintiffs was reinstated." Id. On appeal, however, while it affirmed on other grounds, this Court rejected the adverse action ruling as contrary to First Amendment retaliation standards. 373 F.3d 310, 320 (2d Cir. 2004) ("we disagree with the district court's conclusion that the filing of the administrative charges, and the resulting suspension, could not, as a matter of law, constitute an adverse employment action"). <4> Following Wal-Mart's argument to its logical conclusion, Brady would have had a claim if he had simply worked the day in the parking lot and then quit. However, the argument goes, Brady lost his claim because the company took some half-way measures after his father complained, calling attention to the apparent discrimination. That makes no sense and neither is, nor should be, the law. Alternatively, Wal-Mart may take the position that Brady had a duty to complain and, had he failed to do so, would still have lost his claim. Any such duty would be fabricated out of whole cloth. Nothing in ADA -- or Title VII or the ADEA -- requires an individual who is transferred for discriminatory reasons to complain without avail to his employer in order to challenge the discrimination in federal court. <5> Punitive damages are not available if the employer proves that the challenged conduct was "contrary to the employer's good faith efforts to comply" with the ADA. Kolstad, 527 U.S. at 545 (citation omitted). However, Wal-Mart does not assert an affirmative defense in this appeal. <6> Wal-Mart further contends that the consent decree was improperly admitted into evidence. On the contrary, the district court did not abuse its discretion in admitting the decree as evidence that "Wal-Mart was aware of its obligations under the ADA," for punitive damages purposes (A947). See United States v. Gilbert, 668 F.2d 94, 97 (2d Cir. 1981) (consent decree is admissible to prove notice or knowledge).